Academic journal article American University Law Review

Congress as a Catalyst of Patent Reform at the Federal Circuit

Academic journal article American University Law Review

Congress as a Catalyst of Patent Reform at the Federal Circuit

Article excerpt


A well-functioning patent system is vital to important segments of the American economy.1 Notwithstanding the patent system's significance, over the past thirty years supervision of patent policy has largely fallen to a single federal appellate court: the U.S. Court of Appeals for the Federal Circuit.2 Recently, however, other institutions have increased their interest in patent law. The U.S. Supreme Court has recently become extremely active in reviewing patent cases.3 Similarly, Congress,4 the U.S. Patent and Trademark Office5 (USPTO), and the Federal Trade Commission6 (FTC) have also begun to exert their influence in the area.7

The Federal Circuit, however, has consistently expanded its jurisdiction and authority despite attempts by other institutions to influence patent policy.8 Commentators and judges have observed the Federal Circuit's growing influence over patent law and have suggested potential avenues for checking the court's power.9 A rich literature of academic criticism has identified a host of institutions that could potentially temper the growth of the court's power and assist the court in setting innovation policy, including (1) the Supreme Court,10 (2) district and other circuit courts,11 (3) the USPTO,12 and (4) the Solicitor General of the United States.13 Despite calls for new institutional voices in patent policy, the Federal Circuit has, by and large, maintained control of patent law.14

Surprisingly, scholars have generally dismissed Congress's potential role in supervising patent law and checking the Federal Circuit's expanse.15 There are various reasons for the skepticism with which the literature treats congressional action in patent law. First, Congress has shown an extreme disinterest in patent law over the past sixty years.16 Since 1952, with the exception of the 2011 Leahy-Smith America Invents Act17 (AIA), Congress has made only modest changes to the patent statute.18 Thus, scholars have tended to ignore Congress when discussing institutional relationships in patent policy.19 Second, the few scholars who have considered congressional intervention in patent law have dismissed such intervention as undesirable.20 Academic critics describe Congress as ill-suited to make the frequent, fine-tuned adjustments to patent law that are required to have the patent system operate optimally.21 Furthermore, Congress is seen as overly beholden to special-interest groups and lobbyists interested in capturing patent rents.22

This Article argues that Congress has a vital role to play in shaping patent policy, a role which extends beyond piece-meal modification of the patent statute. As this Article demonstrates, Congress can improve the operation of the patent system by acting as a catalyst of patent reform at the Federal Circuit. Congress can nudge the court to reconsider calcified precedents or procedural rules that need to be updated. Furthermore, when new technological realities render aspects of the patent system obsolete, Congress can identify doctrinal areas that need reform and signal that need to the Federal Circuit. This signaling function is similar to the role that some scholars have associated with the Supreme Court in its relationship with the Federal Circuit.23 But the signaling function that Congress can undertake is potentially much broader than that of the Supreme Court. Whereas the Supreme Court functions as a percolator of change for particular doctrines, Congress can suggest broad reform initiatives that can lead to substantial overhauls of patent policy at the Federal Circuit.

When Congress seriously considers legislative reform to the patent laws, it opens up a dialogue with the Federal Circuit. This dialogue often begins in Congress and then moves to the Federal Circuit. The court can react to congressional reform proposals in a number of ways: directly lobbying Congress; altering its jurisprudence; or increasing supervision and instruction to the USPTO, U. …

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