This Article presents a new model for examining the role of the Court of Appeals for the Federal Circuit (Federal Circuit) with regard to patent law, positing that the Federal Circuit behaves like an agency and serves as the de facto administrator of the Patent Act. The Federal Circuit has traditionally engaged in a form of substantive rulemaking by issuing mandatory bright-line rules that bind the public. In reviewing patent agency appeals, the Federal Circuit acts more like an agency than a court by minimizing agency deference through the manipulation of standards of review and administrative law doctrines. This position of administrator raises several concerns. Supreme Court intervention has jeopardized the Federal Circuit’s ability to continue engaging in substantive rulemaking, calling into question the sustainability of the lower court’s role as administrator. Furthermore, the Federal Circuit is caught between the Supreme Court’s goal to unify administrative law and Congress’s goal to unify patent law. These problems suggest that a confrontation between the Supreme Court and Congress is inevitable.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital