Open Access. Powered by Scholars. Published by Universities.®
- Discipline
Articles 1 - 4 of 4
Full-Text Articles in Law
Disguised Patent Policymaking, Saurabh Vishnubhakat
Disguised Patent Policymaking, Saurabh Vishnubhakat
Faculty Scholarship
Patent Office power has grown immensely in this decade, and the agency is wielding its power in predictably troubling ways. Like other agencies, it injects politics into its decisions while relying on technocratic justifications. It also reads grants of authority expansively to aggrandize its power, especially to the detriment of judicial checks on agency action. However, this story of Patent Office ascendancy differs from that of other agencies in two important respects. One is that the U.S. patent system still remains primarily a means for allocating property rights, not a comprehensive regime of industrial regulation. Thus, the Patent Office cannot …
Renewed Efficiency In Administrative Patent Revocation, Saurabh Vishnubhakat
Renewed Efficiency In Administrative Patent Revocation, Saurabh Vishnubhakat
Faculty Scholarship
Administrative patent revocation in the U.S. is poised to enter a new period of efficiency, though ironically it will be an efficiency that the America Invents Act originally put in place. The Court’s recent approval of the constitutionality of Patent Trial and Appeal Board ("PTAB") proceedings was blunted by the Court’s accompanying rejection of partial institution. This Patent Office practice of accepting and denying validity review petitions piecemeal had been a key part of the agency’s procedural structure from the start. As a result, the Court’s decision in SAS Institute v. Iancu to require a binary choice — either fully …
The Mixed Case For A Ptab Off-Ramp, Saurabh Vishnubhakat
The Mixed Case For A Ptab Off-Ramp, Saurabh Vishnubhakat
Faculty Scholarship
This Essay begins from the emerging agenda in the political branches for reforming various aspects of the USPTO Patent Trial and Appeal Board, and focuses on a particular reform: the creation of a PTAB off-ramp whereby a patent being challenged in an administrative revocation proceeding could be removed into a system primarily aimed at amending its claims and preserving its validity. To put the proposal into perspective, the Essay presents specific empirical trends, largely unexplored until now, that implicate patent reliance interests to which the PTAB has done injury. Ultimately, because the benefits and costs from a PTAB off-ramp are …
The Non-Doctrine Of Redundancy, Saurabh Vishnubhakat
The Non-Doctrine Of Redundancy, Saurabh Vishnubhakat
Faculty Scholarship
This Article explores and evaluates a controversial practice that the Patent Office undertook beginning early in the post-AIA regime, the practice of denying otherwise meritorious requests for review because of what the Office termed "redundant" grounds. The controversy over redundancy-based rejections had several sources. One was that making such rejections required the Patent Office to decide petitions piecemeal—and, indeed, the agency claimed that power for itself—even though it was not clear that this power lay within the statute. Another source was that the Patent Office persistently declined to explain what, in the agency's view, did or did not constitute redundancy. …