Who's Afraid of the APA? What the Patent System Can Learn from Administrative Law

68 Pages Posted: 18 Apr 2006 Last revised: 12 Feb 2016

Stuart Minor Benjamin

Duke University School of Law; Duke Innovation & Entrepreneurship Initiative

Arti K. Rai

Duke University School of Law; Duke Innovation & Entrepreneurship Initiative

Date Written: March 31, 2010

Abstract

In recent years, widespread dissatisfaction with the perceived poor quality of issued patents has spurred a diverse range of groups to call for reform of administrative procedures. Strikingly, however, most calls for reform pay little attention to principles of administrative law. Similarly, judges (in particular the judges of the Federal Circuit) have treated patent law as an exception to the Administrative Procedure Act, and to administrative law more generally. In this Article, Professors Benjamin and Rai contend that this treatment is doctrinally incorrect and normatively undesirable. Standard principles of administrative law provide the appropriate approach for judicial review in the current system of patent grants and denials. As for proposed reforms, such as the institution of post-grant opposition proceedings, an administrative approach to judicial review is the best mechanism for addressing the collective action/public good problems that inevitably arise in challenges to patent validity. Finally, an administrative approach provides the doctrinally appropriate and normatively desirable institutional foundation for the determinations of economic policy that the patent system should be making.

JEL Classification: K23, O34

Suggested Citation

Benjamin, Stuart Minor and Rai, Arti Kaur, Who's Afraid of the APA? What the Patent System Can Learn from Administrative Law (March 31, 2010). Georgetown Law Journal, Vol. 95, p. 269, 2007; Duke Science, Technology & Innovation Paper No. 8; Duke Law School Legal Studies Paper No. 109. Available at SSRN: https://ssrn.com/abstract=897307

Stuart Minor Benjamin (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7275 (Phone)
919-613-7231 (Fax)

Duke Innovation & Entrepreneurship Initiative ( email )

215 Morris St., Suite 300
Durham, NC 27701
United States

Arti Kaur Rai

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Duke Innovation & Entrepreneurship Initiative ( email )

215 Morris St., Suite 300
Durham, NC 27701
United States

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