Who's Afraid of the APA-What the Patent System Can Learn from Administrative Law

SM Benjamin, AK Rai - Geo. lJ, 2006 - HeinOnline
Geo. lJ, 2006HeinOnline
In the last few years, widespread dissatisfaction with the patent system-and particularly with
the perceived poor quality of issued patents-has spurred a broad range of groups to call for
reform. Congress is currently looking into the possibility of significant reform.'One important
reform proposal upon which otherwise divergent groups broadly agree is fortification of
administrative procedures, particularly through the institution within the Patent and
Trademark Office (PTO) of a trial-type system of post-grant opposition. 2 The emphasis on …
In the last few years, widespread dissatisfaction with the patent system-and particularly with the perceived poor quality of issued patents-has spurred a broad range of groups to call for reform. Congress is currently looking into the possibility of significant reform.'One important reform proposal upon which otherwise divergent groups broadly agree is fortification of administrative procedures, particularly through the institution within the Patent and Trademark Office (PTO) of a trial-type system of post-grant opposition. 2 The emphasis on fortifying administrative procedures through new legislation is in accord with the Supreme Court's interest, demonstrated through its 1999 Dickinson v. Zurko decision, in applying administrative law to the patent system. Indeed, the inattention to administrative law principles has long been a striking feature of the patent system. In contrast to commentators and practitioners in other technically complex areas (for example, environmental law, telecommunications law, and food and drug law), the patent law community has tended to pay little attention to administrative law. 4 In part, this has been because, until
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