Sarah Tran · April 2012
80 GEO. WASH. L. REV. 831 (2012)
Since 1935, courts have embraced a uniformly lenient approach toward congressional delegations of authority to agencies across different regulatory areas with one notable exception. The U.S. Court of Appeals for the Federal Circuit has crafted its own limitations on the authority of a presidentially controlled agency, the U.S. Patent and Trademark Office (“PTO”). Amid ongoing efforts to reform the patent system, this Article provides the first analysis of the development of this major administrative law anomaly. It shows that, surprisingly, the Federal Circuit’s approach derives little support from the Constitution, the PTO’s organic statute, Supreme Court precedent, or, for that matter, any other appellate court decision. Indeed, the Federal Circuit has never proffered a coherent rationale for its approach. This Article further demonstrates that the Federal Circuit’s approach has generated an incoherent and normatively dysfunctional distinction between valid procedural rules and invalid substantive rules that (1) creates perverse incentives for the PTO to keep the public out of its decisionmaking process, (2) stifles the PTO’s ability to upgrade its notoriously slow and ineffective review process, and (3) sets a precedent that allows the judicial branch to distort congressional delegations of authority.
