Joseph Scott Miller—Substance, Procedure, and the Divided Patent Power

How should the Federal Circuit determine whether a Patent Office rule is within the agency’s statutory authority? The court has traditionally held that the Patent Office has the authority to issue procedural rules but not substantive ones. See, e.g., Tafas v. Doll. However, the court has struggled to identify a suitable test to define the boundary between procedural and substantive rules. Id. Professor Joseph Scott Miller (University of Georgia School of Law) proposes in Substance, Procedure, and the Divided Patent Power, 63 Admin. L. Rev. 31 (2011), that the court use a “sorting standard” modeled after the framework courts use in interpreting the Rules Enabling Act (REA).

Paul R. Gugliuzza—Rethinking Federal Circuit Jurisdiction

Does the Federal Circuit’s non-patent caseload impact the development of its patent jurisprudence? In Rethinking Federal Circuit Jurisdiction, 100 Geo. L.J. 1437 (2012), Professor Paul R. Gugliuzza (University of Florida Levin College of Law) argues that the Federal Circuit’s non-patent docket might underexpose the court to relevant issues impacting innovation policy and that the court’s concentrated patent docket may marginalize some of its non-patent cases. Professor Gugliuzza concludes by proposing a framework for a reimagined Federal Circuit docket that would rectify these problems.