Administrating patent litigation

INTRODUCTIONRecent efforts to reform patent litigation have involved every branch of the federal government. Congress, after repeated calls to action,1 passed the 2011 Leahy-Smith America Invents Act, the largest and most expansive overhaul to the patent statute in almost sixty years.2 The White House, an office not well known for influencing patent policy,3 announced a multipart executive initiative aimed at curbing some of the abuses of the patent system.4 And the federal judiciary-especially the Supreme Court-has been busy crafting new doctrines and modifying old ones in an attempt to shape patent litigation.5But despite this wide marshalling of federal resources, one branch remains curiously absent from the chorus of patent litigation reform: administrative agencies. The U.S. Patent and Trademark Office (PTO), while admirably vocal in its efforts to improve patent issuance, has largely disclaimed a role in reforming patent litigation.6 Non-PTO administrative agencies, meanwhile, have remained mostly silent on the issue.7 And the recent legislative, executive, and judicial efforts in the area have largely ignored the variety of roles administrative agencies- especially agencies other than the PTO-play in patent litigation.8This silence is not because administrative agencies have little invested in patent law. To the contrary, agencies have recently been playing increasingly important roles in patent policy debates.9 And there has also been an increase in several specialized species of patent litigation that directly involve non-PTO agency adjudication.10 How agencies function-and should function-in patent litigation is consequently becoming an increasingly important area of patent litigation reform. 11To that end, this Article provides an account of administrative agencies in patent litigation missing from patent reform proposals and current scholarship. It provides a synoptic view of the functions that administrative agencies currently play in patent litigation; it describes some of the problems with this involvement; and it provides several cheap, easy, and politically available tools to solve them. Specifically, this Article provides a framework for when and how agencies should- and should not-become involved in patent litigation, either as parties, as experts, or as traditional rule-making authorities. This prescription ultimately seeks to better "administrate" patent litigation.12Indeed, administrative agencies currently have a variety of roles in administrating patent litigation. From "litigation gatekeepers" with the authority to "oversee and manage private litigation efforts,"13 to scientific and technical experts,14 to bodies of post-adjudicatory review,15 to alternative venues,16 administrative agencies appear to have wide-ranging functions in a broad number of patent disputes. Furthermore, these administrative proceedings take place over a broad stretch of a patent dispute's life cycle, from the initial complaint, through trial and settlement, and even beyond. This descriptive account of agency functions in patent litigation challenges the widely held notion that federal courts alone have the authoritative say over who may sue for patent infringement, where, and how.17Unsurprisingly, agency administration of patent litigation is not without its own set of problems. As with other private interactions with agencies, agency administration of patent litigation suffers from "regulatory gamesmanship,"18 industry and political capture,19 adjudicatory uncertainty,20 and inconsistent judgments.21 These problems, to be sure, are neither new nor unique to patent litigation. But patent litigation-given the putatively regulatory nature of the patent right itself22-gives these problems a texture all their own. Poor agency administration of patent litigation affects patent holders as well as accused infringers, delays litigation, slows investment, and makes settlement problematic.26 Parties facing patent lawsuits where agencies are involved frequently get more than they bargained for. …