Administering Patent Law

• Author: Jason Rantanen
• Position: Professor of Law and Fergusson-Carlson Fellow-in-Law; Director, University of Iowa Innovation, Business & Law Center
• Pages: 2299-2312

2299

Administering Patent Law

Jason Rantanen*

ABSTRACT: Ten years ago, few people—with the exception of a handful of

visionary academics—spent much time thinking about the s ignificance of

administrative law to the patent system. Today, administrative law issues

pervade the patent system, from examiners and patent judges up to the United

States Supreme Court. At the same time, modern administrative law itself

faces a series of challenges that call into question its fundamental premises,

such as the degree of deference that courts should grant agencies and the

amount of political control that is constitutionally permissible or required.

What does all this mean for the future of patent law?

Thanks to the support of the David F. Hellwege fund at the Iowa Law School

Foundation, this Issue of the Iowa Law Review contains an amazing array

of scholarship on these topics from some of today’s brightest and most

prominent patent law thinkers.

I. AN INTRODUCTION TO THE SYMPOSIUM ISSUE ........................... 2299

II.JUDICIAL REVIEW METRICS TO FRAME THE DISCUSSION ............. 2301

A.THE SHIFT FROM REVIEW OF DISTRICT COURTS

TO REVIEW OF AN ADMINISTRATIVE AGENCY ........................... 2302

B.DENIALS OF PATENT APPLICATIONS: RARE DECISIONS

THAT USUALLY AFFIRM ......................................................... 2303

C.INTER PARTES REVIEWS: THE NEW KID ON THE BLOCK ........... 2305

I. AN INTRODUCTION TO THE SYMPOSIUM ISSUE

The United States Patent and Trademark Office (“USPTO”) is one of the

oldest administrative agencies in the country, tracing its origins back to the

*

Professor of Law and Fergusson-Carlson Fell ow-in-Law; Director, University of Iowa

Innovation, Business & Law Center. Thank you to all of my research assistants who have assisted

with the Compendium of Federal Circuit Decisions, especially my 2018–19 research assistants Joseph

Bauer, Louis Constantinou, John Miscevich, and Brett Winborn. I am also grateful to the Iowa

Law Review for its willingness to co-host a symposium on the intersection of administrative and

patent law.