This chapter covers research on interactions between institutional actors responsible for the development and implementation of US patent law. Over the last decade, arguments in favor of greater devolution of decisional authority from the Court of Appeals for the Federal Circuit to the US Patent and Trademark Office (USPTO) and the district courts have achieved some traction. However, this devolution has not necessarily been accompanied by fortification of the expertise and resources for conducting the complex fact-finding often involved in patent cases. Moreover, where devolution has been accompanied by fortification, such as through the creation of the USPTO Patent Trial and Appeals Board (PTAB), the results have been controversial. Meanwhile, many questions persist regarding whether current interactions between patent institutions are creating either appropriate results in individual cases or appropriate policy for the system as a whole. Perhaps as a consequence, the Supreme Court continues its active supervision of institutional interactions.
Arti K. Rai
Arti K. Rai and Saurabh Vishnubhakat
The post-grant administrative review of patent validity set up at the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB) by the America Invents Act of 2011 has transformed the relationship between Article III patent litigation and the administrative state. This chapter reviews scholarly literature that has made the case for such review and presents basic data on the functioning of several predecessors to the PTAB. It also reviews the empirical literature on the PTAB’s functioning, focusing on literature that falls into one of four categories: (1) basic descriptive statistics; (2) the intersection with district court litigation, including across different technology areas and different courts; (3) the impact of the PTAB on non-practicing entities; and (4) comparisons of patent and patent-examination characteristics between patents challenged at the PTAB and a matched sample that was not challenged. The chapter concludes by setting forth a research agenda