The Cooperation of Many Minds: Domestic Patent Reform in a Heterogeneous Regime

Abstract

Typically, suggested patent reforms have focused on streamlining administrative duties at the United States Patent and Trademark Office (USPTO). Such reforms, however, may ignore the important role played by many different administrative agencies in formulating patent policies as to various issues important to a wide range of constituencies. By minimizing the roles of these secondary patent regulators, such reforms may not take into account their competing views of the relevant patent statutes and the overall goals of the patent regime. For example, in its roles of regulating patent imports, the International Trade Commission may offer competing views on the scope of infringement under the Patent Act. Undertaking a new approach, this Article contends that patent law should be seen as a heterogeneous regime that attempts to structure patent law through the competitive roles played by diverse agencies. This Article will examine two issues. First, this Article will 'map' the roles played by the diverse actors in the patent regime. Second, after exploring the 'landscape' of patent law, this Article will examine how the boundaries of this regime are policed by different judicial doctrines. This Article contends, that while doctrinal competition may be necessary and administrative patent reform may need to recognize the importance of heightening the competitive relationships of patent law, the actions of some agency actors, may deserve some heightened scrutiny.

Keywords: administrative law, patent law, antitrust, legislation, Patent Reform Act of 2007, Administrative Procedure Act