Article
Constitutional Structure in the Patent Office
SSRN
(2021)
Abstract
Agencies in the modern administrative state are no strangers to constitutional attack. However, the Patent Office is a newcomer to such crises and has most recently dodged two. The agency’s decade-old administrative adjudication system was recently found in violation of the Appointments Clause, and the interim judicial remedy solved the problem but created significant others. Meanwhile, the details of Patent Office adjudication present Due Process concerns about impartiality and moral hazard. These seemingly disparate problems arise from a shared underlying legislative failure to differentiate the agency’s political role in executive decision making from its technocratic role in expert adjudication. Without confronting this defect in Patent Office structure, efforts to resolve current constitutional difficulties and avoid future ones are unlikely to succeed. Resolving this defect can begin to deconstitutionalize the perennially high stakes of Patent Office adjudication.
Keywords
- patent,
- administrative,
- constitution,
- appointments clause,
- due process,
- judicial review,
- agency,
- America Invents Act,
- inter partes,
- post grant,
- Cuozzo,
- Oil States,
- SAS,
- Thryv,
- Arthrex
Disciplines
Publication Date
2021
Citation Information
Saurabh Vishnubhakat. "Constitutional Structure in the Patent Office" SSRN (2021) Available at: http://works.bepress.com/saurabh_vishnubhakat/95/