Giving the Federal Circuit a Run for Its Money: Challenging Patents in the PTAB

My main objective is directed at institutional questions, to help the PTO and Congress as each considers changes to the system and to gauge how well the PTAB could function to ameliorate the effect of Federal Circuit isolation and provide a basis for the court to consider new perspectives, write more persuasively, and provide better guidance. A second goal is to draw greater academic attention to the potential these procedures have for changing the patent system and to provoke discussion—outside the emerging PTAB bar—on how they ought to operate. In particular, the statute layers inter partes review in a specialized agency under appellate review in a specialized court. I offer some thoughts on how authority over patent jurisprudence should be allocated between these two centers of expertise.

The Article proceeds as follows. Part I describes the three procedures. Part II evaluates use of the new system. Part III discusses the interaction between the PTAB and the Federal Circuit.

Part IV looks at the problems these procedures raise for the parties, the adjudicators, and the sound administration of patent law.