Congress as a Catalyst of Patent Reform at the Federal Circuit

The U.S. Court of Appeals for the Federal Circuit is the dominant institution in patent law. The court's control over patent law and policy has led to a host of academic proposals to shift power away from the court and towards other institutions, including the U.S. Supreme Court, the U.S. Patent and Trademark Office, and federal district courts. Surprisingly, however, academics have largely dismissed Congress as a potential institutional check on the Federal Circuit. Congress, it is felt, is too slow, too divided, and too beholden to special interests to effectively monitor changes in innovation and respond with appropriate reforms.This Article takes the opposite position. It proposes a prominent congressional role in patent policy, a role that extends beyond passing reform legislation. Congress's relationship with the Federal Circuit is a dialogic one in which Congress often plays an initial role of catalyst and a final role of arbiter. Understanding Congress's dialogic role in patent reform is not merely a theoretical exercise; this Article traces recent dialogic interactions between Congress and the Federal Circuit during the passage of the America Invents Act. The institutional framework proposed by this Article provides a promising alternative to continued Federal Circuit expansion over patent policy. Furthermore, dialogue between Congress and the Federal Circuit can improve decision making at the Federal Circuit while leveraging the relative advantages of both institutions in reforming the patent system.INTRODUCTIONA well-functioning patent system is vital to important segments of the American economy.1 Notwithstanding the patent system's significance, over the past thirty years supervision of patent policy has largely fallen to a single federal appellate court: the U.S. Court of Appeals for the Federal Circuit.2 Recently, however, other institutions have increased their interest in patent law. The U.S. Supreme Court has recently become extremely active in reviewing patent cases.3 Similarly, Congress,4 the U.S. Patent and Trademark Office5 (USPTO), and the Federal Trade Commission6 (FTC) have also begun to exert their influence in the area.7The Federal Circuit, however, has consistently expanded its jurisdiction and authority despite attempts by other institutions to influence patent policy.8 Commentators and judges have observed the Federal Circuit's growing influence over patent law and have suggested potential avenues for checking the court's power.9 A rich literature of academic criticism has identified a host of institutions that could potentially temper the growth of the court's power and assist the court in setting innovation policy, including (1) the Supreme Court,10 (2) district and other circuit courts,11 (3) the USPTO,12 and (4) the Solicitor General of the United States.13 Despite calls for new institutional voices in patent policy, the Federal Circuit has, by and large, maintained control of patent law.14Surprisingly, scholars have generally dismissed Congress's potential role in supervising patent law and checking the Federal Circuit's expanse.15 There are various reasons for the skepticism with which the literature treats congressional action in patent law. First, Congress has shown an extreme disinterest in patent law over the past sixty years.16 Since 1952, with the exception of the 2011 Leahy-Smith America Invents Act17 (AIA), Congress has made only modest changes to the patent statute.18 Thus, scholars have tended to ignore Congress when discussing institutional relationships in patent policy.19 Second, the few scholars who have considered congressional intervention in patent law have dismissed such intervention as undesirable.20 Academic critics describe Congress as ill-suited to make the frequent, fine-tuned adjustments to patent law that are required to have the patent system operate optimally.21 Furthermore, Congress is seen as overly beholden to special-interest groups and lobbyists interested in capturing patent rents. …