The United States Constitution grants Congress the power "(t)o promote the Progress of Science and useful Arts" by entering into a bargain that drives patent policy: Congress grants a patent to the inventor for a limited time, in exchange for the benefit to society of the invention. The Constitution empowered Congress with broad authority, and Congress has, as in many areas of the law, created several entities that shape patent policy. Despite Congress's creation of the United States Patent and Trademark Office ("PTO"), tasked with the regulation of patent applications and grants, courts-specifically semi-specialized appellate courts-have driven patent policy for nearly two centuries. Beginning in 1982 when Congress established a single, specialized court with near-exclusive appellate jurisdiction in patent cases, the Unites States Court of Appeals for the Federal Circuit, the judiciary has dominated the interpretation of the patent statute. From the initial Patent Act of 17909 to the most recent overhaul of the patent system, Congress has drafted laws in broad terms, implicitly leaving much substantive law for the patent institutions, specifically the PTO and the Federal Circuit, to interpret.' Despite several amendments to the Patent Act, Congress has not yet given the PTO rulemaking authority over substantive questions of patent law. The result is a legal hybrid whereby the PTO examines and issues patents-a process that necessarily invokes patentability determinations-while the Federal Circuit assumes primary authority of interpreting substantive questions of patent law. Surprisingly, however, the Federal Circuit has consistently refused to grant any deference to the legal conclusions of the PTO, and attempts at patent policy reform have been marred by the power struggle between the PTO and the Federal Circuit over substantive patent law.
Samiyyah R. Ali,
The Great Balancing Act: The Effect of the America Invents Act on the Division of Power Between the Patent and Trademark Office and the Federal Circuit,
69 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol69/iss1/4