Author: Alexis Desire

Ending the Patenting Monopoly

Article

For over 170 years, U.S. patent law has required that, prior to the assertion of any property rights in an invention, the inventor...

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The PTO and the Market for Influence in Patent Law

Article

As statutory schemes go, the patent statute has been relatively stable from 1952 to the present. In contrast to copyright law, where...

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The Use and Abuse of IP at the Birth of the Administrative State

Article

Since
its inception in the Progressive Era, the modern administrative state
has functioned in tandem with the three intellectual property doctrines
enforced by the federal government—patent, copyright, and trademark
law. Although administrative law and these intellectual property
doctrines have shared a common provenance—defined, promulgated, and
enforced through federal institutions, statutes, and case law—administrative
lawyers did not discuss intellectual property, and intellectual property
lawyers similarly did not discuss administrative law.
Throughout the twentieth century, administrative law and intellectual
property law seemed as if they were hermetically sealed off from each
other in both theory and practice.

In
recent years, the self-imposed segregation between these two legal regimes
has finally broken down. In the 1990s, legal scholars began to
explore the doctrinal and institutional relationships between patents
and the administrative state, and some
patent scholars have since called for a theoretical reframing of patent
doctrine "through the lens of regulation."

In 1999, the Supreme Court seemed to agree with this growing cadre of
academic scholarship, concluding in Dickinson v. Zurko that the
Administrative Procedure Act applies to the Federal Circuit’s review
of the regulations promulgated by the Patent and Trademark Office (PTO).
In its March 2009 decision in Tafas v. Doll, the Federal Circuit
took another step toward integrating patent law with the administrative
state, applying Chevron deference to the PTO’s procedural rulemaking.
However, the fractured panel decision virtually guarantees further appellate
litigation (both a petition for rehearing en banc and a certiorari petition
to the Supreme Court). Regardless of the outcome in
the appeals process, there will be substantial litigation on remand
as well.

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Growing Pains in the Administrative State: The Patent Office’s Troubled Quest for Managerial Control

Article

In the last ten years of our "information age," the workload of the Patent and Trademark Office (PTO) has grown...

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