Ryan Vacca: The Federal Circuit Acts Like an Administrative Agency

Is the Federal Circuit engaging in substantive rulemaking and policy setting about patent law? Should it? Professor Ryan Vacca (Akron Law) answers "yes" to both questions in Acting Like an Administrative Agency: The Federal Circuit En Banc (forthcoming in the Missouri Law Review). When only the third of the Federal Circuit's docket comprised of patent cases is considered, the Federal Circuit goes en banc more than any other circuit (see the table on p. 4), but "the more striking feature of the en banc orders is their scope": the court often requests briefing on numerous or broad questions of patent policy, and the orders often "expressly permit amici curiae to file briefs without leave of court" and "specifically invite[] the United States or the PTO to file an amicus brief." Vacca argues that when the Federal Circuit sits en banc in patent cases, it is acting like an administrative agency. And despite concerns about separation of powers and lack of meaningful review, Vacca argues that "the Federal Circuit may be the best candidate" to set patent policy currently, as Congress has shown little interest in amending the Patent Act (though that may be changing?) and the PTO lacks rulemaking authority. It's an interesting piece and a quick read, and it received a shout-out on PatentlyO.