Featured / Scholarship

Every month here at Fed Circuit Blog we plan to highlight important scholarship—primarily law review articles in draft or final form—related to the Federal Circuit and its jurisdiction and jurisprudence. This month we are highlighting four articles from the Iowa Law Review’s recent symposium addressing patent and administrative law.

Jason Rantanen, Administering Patent Law, 104 Iowa L. Rev. 2299 (2019)

The patent system is not immune from the growing scope and influence of administrative law. Indeed, recent administrative changes, including the establishment of inter partes review, have shifted some authority to resolve patent challenges away from the Federal Circuit and toward the Patent and Trademark Office. In this introduction to Iowa Law Review’s symposium issue on patent and administrative law, University of Iowa law professor Jason Rantanen provides statistics and analysis on these trends, gleaning insight for practitioners.

Rebecca S. Eisenberg, A Functional Approach to Judicial Review of PTAB Rulings on Mixed Questions of Law and Fact, 104 Iowa L. Rev. 2387 (2019)

Should the Federal Circuit apply a more deferential level of review to Patent Trial and Appeal Board decisions than it applies to generalist district court decisions? University of Michigan law professor Rebecca Eisenberg argues in the affirmative—at least in the context of nonobviousness and claim interpretation, two issues with both legal and factual underpinnings. More deference, she argues, would avoid “replicating the work of the PTAB from the appellate bench on routine case-specific rulings.”

John M. Golden, PTO Panel Stacking: Unblessed by the Federal Circuit and Likely Unlawful, 104 Iowa L. Rev. 2447 (2019)

Does the U.S. Patent and Trademark Office violate the Constitution when it “conven[es] expanded panels of [administrative patent] judges personally selected by the Director or Chief Judge to consider a request for rehearing” presented to the Patent Trial and Appeal Board? University of Texas law professor John Golden argues that this “panel stacking” practice “raises serious constitutional questions under the Due Process Clause.” As part of his analysis, he explains how “judges, advocates, and commentators have commonly misused—or at least misdescribed—a decades-old decision of the United States Court of Appeals for the Federal Circuit in which the en banc court considered the legitimacy of panel stacking.”

Sapna Kumar, Patent Court Specialization, 104 Iowa L. Rev. 2511 (2019)

Has the Federal Circuit deviated from its intended purpose? When Congress created the court in 1982, it envisioned a broad institution designed to hear appeals from various agencies. Today, however, the docket reflects an unmistakable emphasis on patent cases. In this article, University of Houston law professor Sapna Kumar considers ways Congress can address this specialization and “restore a balance of power in patent law.”