104 Iowa L. Rev. 2511 (2019)

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Abstract

A central issue in administrative law is how to balance power between executive-branch agencies and the courts that review their decisions, both to preserve separation of powers and ensure good decisionmaking. In patent law, however, such a balance does not exist. When Congress created the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) in 1982, it intended for the court to be a generalist institution that heard appeals from a variety of agencies. But since that time, the Federal Circuit has become a specialized court, with patent-related matters now comprising the overwhelming majority of its docket. Over the years, this specialization has led to various problems, including disregard for the Patent and Trademark Office’s (“PTO’s”) autonomy, political activism, and judicial legislating. The Federal Circuit has consolidated power to the point that no other branch of government serves as an effective check, raising separation-of-powers concerns. Consequently, it is important that Congress act to restore a balance of power in patent law. This could be accomplished by granting the PTO greater rulemaking authority to limit the Federal Circuit’s ability to engage in judicial legislation, to facilitate public participation, and to generally serve as a counterbalance to the powerful court.