Working Without Chevron: The PTO as Prime Mover

Through a proliferation of post-issuance administrative proceedings, the U.S. Patent and Trademark Office (PTO) has become a major player in the fate of patents after their initial examination and grant. In combination with the PTO’s more traditional roles in initial examination and general guidance, new post-issuance proceedings enable the PTO to help steer the development of substantive patent law even without general provision of high-level Chevron deference for the agency’s interpretations of substantive aspects of the U.S. Patent Act. Contrary to some commentators’ suggestions, congressional authorization for new post-issuance proceedings does not appear to have included an implicit delegation of interpretive authority generally warranting Chevron deference on such matters. But the PTO can still accomplish much with lower-level deference and the advantages that its common “first mover” position provides

Patent Law\u27s Falstaff: Inequitable Conduct, the Federal Circuit, and \u3ci\u3eTherasense\u3c/i\u3e

For decades, the relationship between the U.S. Court of Appeals for the Federal Circuit and patent law’s doctrine of inequitable conduct has resembled that between Shakespeare’s Prince Hal and John Falstaff. The former recognizes the excess, the deservedly ill repute, even the at least occasional wickedness of the latter, but cannot tear away from his close companion. Likewise, for decades, Federal Circuit judges have criticized the excesses of the defense of inequitable conduct, which can render a patent unenforceable as a result of misrepresentation or nondisclosure to the U.S. Patent and Trademark Office. Nevertheless, U.S. patent law remains wedded to the defense’s existence. Without a real option of repudiating the defense, the Federal Circuit has instead sought to guide and confine the defense’s application in hopes of advancing legitimate aims at acceptable social cost. In this effort, the opinion for the en banc Federal Circuit written by Chief Judge Randall Rader in Therasense, Inc. v. Becton, Dickinson & Co. figures prominently. The background, content, and prospects for the Federal Circuit’s legal rulings in Therasense are the focus of this Article

Reasoned Decision-Making for Ethics Regulation

Many lawyers and scholars have criticized the ethics rules developed by the organized legal profession to regulate the practice of law. Complaints about processes for generating new ethics rules and ethics opinions interpreting ethics rules commonly reflect concerns about failures to engage in reasoned decision-making. Rationales for the proposed rules or the opinions proffered by bar associations, courts, or agencies are often incomplete or inadequately supported, and one must imagine that the quality of resulting rules or their interpretations often suffers. We argue that administrative law provides a model for how courts can address such concerns—a model that courts, both federal and state, already follow in demanding and encouraging reasoned decision-making by administrative agencies. This Article examines two principal administrative law approaches that courts should adopt. First, even in areas where courts are manifestly inexpert relative to administrative agencies, they have insisted on giving agency rules a “hard look” for confirmation that the agency properly justified the rules at the time of issuance, that the agency issued the rules through a process that gave interested parties a meaningful opportunity to comment and make suggestions, and that the agency properly considered such inputs as well as the whole of the evidence before it. Second, courts have often accorded weight to agency opinions on questions such as statutory interpretation, with the weight accorded dependent on the nature of the agency’s process in generating such an interpretation. In the ethics context, courts can act similarly to promote reasoned decision-making by (1) giving an analog of “hard look” review to rules proffered by bar associations before adopting them and (2) giving bar associations’ ethics opinions only a degree of weight that they merit through high quality process and on-therecord reasoning. By adopting these two approaches to considering the adoption and interpretation of ethics rules, courts can help bring about significant improvements to processes for drafting, adopting, and interpreting ethics rules

Article III, the Bill of Rights, and Administrative Adjudication

Modern reconsideration of legal constraints on the federal administrative state has commonly focused on agency rulemaking but seems increasingly concerned with agency adjudication. In this Essay, we provide an overview of constitutional issues implicated by administrative adjudication. We specifically explain how and why the so-called public-rights doctrine generally allows federal administrative adjudication outside private-rights actions substantially linked to traditional actions in law, equity, or admiralty. We also discuss how constitutional provisions outside Article III—including Bill of Rights protections of individuals as against the federal government—may nonetheless require a role for Article III courts even in so called public rights cases, either as an alternative court of first instance or as an appellate court. This role for Article III courts might become more important with the increased political control of administrative adjudication that an Article II line of the U.S. Supreme Court’s separation-of-powers case law might ultimately demand

The Fracking Revolution: Shale Gas as a Case Study in Innovation Policy

The early twenty-first century has witnessed a boom in oil and natural gas production that promises to turn the United States into a new form of petrostate. This boom raises various questions that scholars have begun to explore, including questions of risk governance, federalism, and export policy. Relatively neglected, however, have been questions of why the technological revolution behind the boom occurred and what this revolution teaches about innovation theory and policy. The boom in U.S. shale gas production reflected long-gestating infrastructure developments, a convergence of technological advances, government-sponsored research and development, the presence or absence of intellectual property rights, rights in tangible assets such as land and minerals, and tax and regulatory relief. Consequently, the story behind the boom reaches far beyond the risk-taking and persistence of George Mitchell, whose independent production company achieved pioneering success with hydraulic fracturing (fracking) in Texas¿ Barnett Shale. Indeed, the broader story demonstrates how a blend of distinct policy levers, reasonably adjusted over time, can combine to foster a diverse innovation ecosystem that provides a robust platform for game-changing innovation