Who’s Afraid of the Federal Circuit?

Authors

Arti K. Rai, Duke Law SchoolFollow

Document Type

Article

Publication Date

2011

Keywords

patents, Federal Circuit, Patent and Trademark Office, PTO

Abstract

In this brief Essay, Professor Rai responds to Professor Jonathan Masur's Yale Law Journal article "Patent Inflation." Professor Masur's argument rests on the assumption that U.S. Patent and Trademark Office ("PTO") behavior is determined almost entirely by a desire to avoid reversal by the Federal Circuit. Although the PTO is certainly a weak agency over which the Federal Circuit has considerable power, Masur overestimates the extent to which high-level PTO administrators are concerned about Federal Circuit reversals and underestimates institutional influences that are likely to operate in a deflationary direction. The PTO is influenced not only by the Federal Circuit but also by executive branch actors, industry players, and workload concerns that can push in a deflationary direction.

Citation

Arti K. Rai, Who’s Afraid of the Federal Circuit?, 121 Yale Law Journal 335-345 (2011)