An Uncomfortable Fit? Intellectual Property Policy and the Administrative State

Marquette Intellectual Property Law Review, Summer 2010 | Go to article overview

An Uncomfortable Fit? Intellectual Property Policy and the Administrative State


The Southeastern Association of Law Schools ("SEALS") panel was conducted August 4, 2009, as part of SEALS' day-long Intellectual Property Workshop in West Palm Beach, Florida. Kali Murray ([dagger]) moderated the panel, which included Sapna Kumar, * Jason Mazzone, ** Hannibal Travis, *** and Jasmine Abdel-khalik. ****

KALI MURRAY:

I would like to welcome you to our panel today, An Uncomfortable Fit?: Intellectual Property Policy and the Administrative State. This panel responds to the considerable scholarship (including some conducted by the folks at this roundtable) on the increasing integration of administrative law into intellectual property policy.

Intellectual property is in a really interesting place right now when it comes to administrative law. We are moving from simple registration and examination procedures to a more complex policy context. This policy context involves multiple stakeholders that seek to advance their causes at multiple administrative sites. This process is complicated even further because the primary administrative agencies in this area, the United States Copyright Office ("Copyright Office") and United States Patent and Trademark Office ("USPTO"), have yet to be comfortably incorporated into the modern administrative regime.

In examining these issues, this round table will discuss the following topics. Each of us will take some time to describe current administrative practices and then take a shorter period of time to look at the normative consequences of this move. This panel is unique as we use an interdisciplinary perspective focused on intellectual property in administrative law. We will conclude with a question and answer session.

One of the primary reasons why I am excited about this panel is who is joining me today. This is my dream team of panelists on the subject of administrative law and intellectual property law. Joining me first to talk about patent law is Professor Sapna Kumar, who will be joining the University of Houston Law School this fall. Professor Jason Mazzone is a professor of law at Brooklyn Law School. He specializes in constitutional law and intellectual property law. Professor Hannibal Travis is an associate professor at Florida International University College of Law. Professor Travis works mainly in the areas of Internet law, intellectual property, and antitrust. Finally, we have Professor Jasmine Abdel-khalik, who is currently at the University of Missouri at Kansas City. She teaches, researches, and writes in the area of intellectual property law, specifically in trademark, unfair competition, and business torts.

We are first going to address the current landscape of administrative law and intellectual property practice. I thought it was important to do this from an interdisciplinary perspective so that we can see the connections between and differences among the respective fields.

The panel has "anointed" me to talk first about these issues. I have been asked to talk about administrative law and the USPTO. This is a particularly fraught issue right now in patent law because of the infamous case Tafas v. Kappos, (1) which looks at a series of rules issued by the USPTO that placed a limit on the number of continuation applications that can be filed by a patentee. (2) Other elements of the rule were at stake in Tafas, but the one that caused the most controversy is the limit placed on continuation applications.

A key element of Tafas is the Federal Circuit's examination of the scope of the USPTO authority under Section 2 of the Patent Act. Section 2, the key grant of the USPTO's governing authority, states that "[t]he Office ... may establish regulations, not inconsistent with law, which ... shall govern the conduct of proceedings in the Office." (3) There are two administrative deference issues related to that language. The first deference issue is whether or not the USPTO should be offered deference when it is judging the scope of its rule making authority under the Administrative Procedure Act. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

An Uncomfortable Fit? Intellectual Property Policy and the Administrative State
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.