Acting like an Administrative Agency: The Federal Circuit En Banc

By Vacca, Ryan | Missouri Law Review, Summer 2011 | Go to article overview

Acting like an Administrative Agency: The Federal Circuit En Banc


Vacca, Ryan, Missouri Law Review


I. INTRODUCTION
II. THE FEDERAL CIRCUIT EN BANC
     A. Disproportionality of the Federal Circuit's En Banc Practice
     B. The Federal Circuit Acting Sua Sponte
     C. The Scope of the Questions
     D. Amici Curiae Briefing in the Federal Circuit
III. ANALOGIZING TO ADMINISTRATIVE SUBSTANTIVE RULEMAKING
IV. A NORMATIVE EVALUATION
     A. Separation of Powers
     B. Lack of Review
     C. Alternative Choices
        1. Congress's Capability for Patent Policy
        2. The Supreme Court's Capability for Patent Policy
        3. The District Courts' Capability for Patent Policy
        4. The PTO's Capability for Patent Policy
        5. The Federal Circuit's Capability for Patent Policy
V. CONCLUSION
APPENDIX

I. INTRODUCTION

When Congress created the Federal Circuit in 1982, (1) it intended to create a court of appeals. (2) Little did it know that it also was creating a quasi-administrative agency that would engage in substantive rulemaking and set policy in a manner substantially similar to administrative agencies. (3) In this Article, I examine the Federal Circuit's practices when it orders a case to be heard en banc and illustrate how these practices cause the Federal Circuit to look like an administrative agency engaging in substantive rulemaking. The number and breadth of questions the Federal Circuit agrees to hear en banc and the means by which it hears them go beyond the limited role of a court to decide the case before it.4 Instead of exercising restraint and addressing only what it must, the Federal Circuit raises wide-ranging questions and makes broad pronouncements of law that set or change patent policy. (5)

Congress traditionally has delegated policy setting to administrative agencies that must comply with the Administrative Procedure Act (APA), (6) particularly the notice and comment provisions. (7) Despite being an appellate court not subject to the notice and comment requirements, (8) the Federal Circuit appears to comply with these requirements when it orders cases to be heard en banc. (9)

And although some commentators object to the en banc Federal Circuit acting like an administrative agency by engaging in substantive rulemaking and policy setting, I argue that the Federal Circuit is in the best position to do so. However, other governmental bodies can and should play a larger role in shaping patent policy. (10)

Part II of this Article describes the Federal Circuit's en banc practices since its creation in 1982, focusing on how the Federal Circuit compares to the other federal appellate courts in terms of the frequency of en banc decisions, how the Federal Circuit orders cases to be heard en banc, the number and scope of the questions presented for en banc consideration, and the use of amici curiae in the briefing stages of the case. Part III examines the Federal Circuit's en banc practices in light of how administrative agencies engage in substantive rulemaking under the APA and suggests that the Federal Circuit's en banc practices mimic those of administrative agencies. Part IV then takes a normative look at the en banc Federal Circuit by analyzing objections to its en banc practices. In response, Part IV evaluates alternatives to the Federal Circuit for directing patent policy and evaluates whether these alternative bodies are better suited than the Federal Circuit sitting en banc.

II. THE FEDERAL CIRCUIT EN BANC

In 1982, Congress created the Court of Appeals for the Federal Circuit11 to serve as the appellate body for cases "arising under any Act of Congress relating to patents" (12) and appeals stemming from decisions of the Patent and Trademark Office's (PTO) Board of Patent Appeals and Interferences "with respect to patent applications and interferences." (13) Proponents of the Federal Circuit's creation hoped that channeling patent cases to a single appellate body would result in a uniform patent law with increased certainty and predictability that would "foster technological growth and industrial innovation. …

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