Law Commons^™

Since Congress’s enactment of the Leahy-Smith America Invents Act, the power and influence of the Patent Trial and Appeal Board as an adjunct to (or substitute for) patent litigation has steadily grown. And just as the PTAB and district courts both face difficult questions of substantive patent law, many of the difficult jurisdictional and procedural issues that have presented in district court litigation have found counterparts in the PTAB, too. One category of such challenges regards the power of the PTAB to hear claims involving other governmental entities. Are the states immune from the power of the PTAB?

I conclude …

Patent policy is typically thought to be the product of the Patent and Trademark Office, the Court of Appeals for the Federal Circuit, and, in some instances, the Supreme Court. This simple topography, however, understates the extent to which outsiders can shape the patent regime. Indeed, a variety of administrative actors influence patent policy through the exercise of their regulatory authority and administrative power.

This Article offers a novel description of the ways in which nonpatent agencies intervene into patent policy. In particular, it examines agency responses to conflicts between patent and other regulatory aims, uncovering a relative preference for …

Verizon’s challenge to the Federal Communications Commission’s 2010 Open Internet Order voided the substance of those rules. But even as the Commission lost the authority to enforce those rules, it gained substantial new regulatory powers. The D.C. Circuit expressly affirmed the Commission’s interpretation of section 706 of the Telecommunications Act of 1996, granting it general regulatory authority to promote the deployment of broadband infrastructure. The significance of this power can hardly be understated. The Commission has relied on this authority to preempt state statutes, to subsidize broadband deployment, and even to support, together with Title II of the Communications Act, …

The Federal Communications Commission’s latest network neutrality regulations, released in 2015, have been the subject of compliment and critique by a varied set of politicians, industry leaders, and scholars. But a potentially surprising font of criticism for these new rules lies within the administration itself: During the FCC’s rule-making proceeding, the Federal Trade Commission cautioned that the FCC could undermine the FTC’s authority to sanction unfair and anticompetitive conduct in broadband industries by activating its powers under Title II of the Communications Act. Simultaneously, members of the FTC argued that it, rather than the FCC, was better suited to address …