104 Iowa L. Rev. 2351 (2019)
Download PDF


In the late 1990s, the Patent Office began describing the “primary mission” of its “Patent Business” as being “to help customers get patents”—an administrative approach widely perceived as leading to an exceptionally profligate era of patent granting. Intellectual cover for the agency’s approach was provided by the academic theory that the Patent Office could follow a “rational ignorance” approach to patent granting—that the agency could rationally issue patents even where it had gathered only sparse information concerning the merits of claimed inventions and had spent little effort in reasoning through and explaining its decisions to grant rights.

Modern administrative law, however, generally requires agencies to act only through the process of “reasoned decisionmaking,” which demands that agencies engage in careful study of the issues presented by any proposed agency action and provide reasoned explanations for their decisions. On both legal and policy grounds, reasoned decisionmaking provides a far superior polestar for guiding the administrative processes of the Patent Office than any theory based on rational ignorance. As a matter of law, the Congress since 1836 has repeatedly rejected any policy favoring the grant of patents through bureaucratic ignorance. As a matter of policy, reasoned decisionmaking provides more comprehensive guidance to the Patent Office not only on how much effort the agency should expend acquiring information, but also on how the agency should exercise its powers in determining the validity of claims to intellectual property rights.

Monday, July 15, 2019