Disguised Patent Policymaking

By Vishnubhakat, Saurabh | Washington and Lee Law Review, Fall 2019 | Go to article overview

Disguised Patent Policymaking


Vishnubhakat, Saurabh, Washington and Lee Law Review


Table of Contents

I.Introduction.............1669

II.Agency Aggrandizement in Patent Law..............1676

A. Stacking Administrative Judge Panels..............1676

B. Resisting Review of Case Selection..............1685

C. Resisting Review of Statutory Boundaries..............1692

D. Resisting Review of Adjudicatory Obligations..............1698

III. Effects of Aggrandized Agency Power................1705

A. Resulting Agency Benefits..............1705

1. Chevron Deference from Panel Stacking..............1706

2. Autonomy from the Courts Without Chevron....1712

B. Resulting Systemic Harms..............1715

1. Injury to Due Process..............1715

2. Injury to Stable Patent Property Rights..............1721

3. Injury to Credible Commitments..............1726

4. Injury to Future Oversight..............1731

C. Alternatives to Judicial Review..............1733

IV. Sources of Agency Aggrandizement..............1736

A. The Traditional Account: Expertise..............1737

B. The Neglected Rationale: Political Input..............1741

1. Empowering the Agency's Political Leadership..............1744

2. Making Technology- and Industry-Specific Policy..............1746

C. Commingled Powers in the Patent Office..............1749

D. Focal Points for Reform..............1756

V.Conclusion..............1758

VI.Appendix: Figures..............1759

I. Introduction

The U.S. Patent and Trademark Office (Patent Office or USPTO) has begun to make policy in disguise, with enough success that the pretense may not be needed much longer. The power of the agency has reached a high-water mark, and although some of the most important and troubling effects of this administrative ascendancy were unintended, they were not unforeseeable. For more than a third of a century, institutional primacy in the patent system lay in the courts, especially the U.S. Court of Appeals for the Federal Circuit.1 Over the same period, however, Congress diminished this judicial primacy three times in favor of growing agency power, most recently in the 2011 America Invents Act (AIA).2 The relatively benign nature of the first two diminishments,3 together with an incomplete understanding of how they relate to the third, explain much about why the agency's power has now started to grow unchecked.

Prior reallocations of power away from the judiciary and to the agency rested on broad legislative consensus. Even in the AIA, the creation of robust agency proceedings by which administrative judges in the USPTO Patent Trial and Appeal Board (PTAB) could revoke previously issued patents rights was a deliberative, if dramatic, choice by Congress. However, the most recent and aggressive expansions of Patent Office power have come from inside the agency itself. Upon receiving specific grants of discretion from Congress, the Patent Office has advanced expansive interpretations of those grants, reflecting ever broader claims of its own power.4 At their most extraordinary, these claims include the power to stack panels of administrative judges to reach desired outcomes in individual cases.5 The agency has stacked panels in a number of cases and even multiple times within individual cases.6 The agency also claims the power to make far-reaching decisions about vested patent rights with absolute immunity from judicial review.7 The pattern of aggrandizement in the agency's positions, especially before its supervisors in the Federal Circuit, is unmistakable.

What has been less clear, until now, is why Congressional action in this power transfer has been so one-sided. Historically, the justifications for enlarging Patent Office power and for creating and endowing the Federal Circuit's own considerable power were the same: expertise.8 The Federal Circuit was created in 1982 out of a desire for nationally uniform appellate oversight in patent litigation, which had previously been fragmented across regional circuits. …

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