In recent years, widespread dissatisfaction with the perceived poor quality of issued patents has spurred a diverse range of groups to call for reform of administrative procedures. Strikingly, however, most calls for reform pay little attention to principles of administrative law. Similarly, judges (in particular the judges of the Federal Circuit) have treated patent law as an exception to the Administrative Procedure Act, and to administrative law more generally. In this Article, Professors Benjamin and Rai contend that this treatment is doctrinally incorrect and normatively undesirable. Standard principles of administrative law provide the appropriate approach for judicial review in the current system of patent grants and denials. As for proposed reforms, such as the institution of post-grant opposition proceedings, an administrative approach to judicial review is the best mechanism for addressing the collective action/public good problems that inevitably arise in challenges to patent validity. Finally, an administrative approach provides the doctrinally appropriate and normatively desirable institutional foundation for the determinations of economic policy that the patent system should be making.
Stuart M. Benjamin & Arti K. Rai, Who’s Afraid of the APA? What the Patent System Can Learn From Administrative Law, 95 Georgetown Law Journal 270-336 (2006)