Take this, Arthrex! Naomi R. Lamoreaux, Yale University, and Rebecca S. Eisenberg, University of Michigan Law School, have posted Separation of Powers or Division of Labor? Patent Interference Disputes, the Grand Narrative, and the History of the Administrative State, 1790-1940:
We use the history of the Patent Office to challenge the Grand Narrative of separation of powers that the current Supreme Court is using to invalidate congressional designs for administrative agencies. Focusing on the adjudication of patent interference disputes—cases in which two or more inventors applied for patents for essentially the same technology—we find that the division of labor between the Patent Office and the courts shifted repeatedly and dramatically over the century and a half preceding the Administrative Procedure Act. Rather than worries about separation of powers, the main drivers of change were (1) the Patent Office’s efforts to curb inventors’ exploitation of interference procedures to delay the award of patents to rivals and (2) the need to manage the workload that interference appeals imposed on the overburdened Patent Office and courts. Innovations in Patent Office procedures led to dramatic improvements in the efficiency of its frontline adjudication of interferences, but officials found it much more difficult to prevent losing parties from abusing appeals opportunistically. At the behest of the Patent Office, Congress repeatedly revised the appeals process for interferences, trying out direct review by ad hoc arbitration panels, individual judges, and variously constituted courts. It even eliminated direct appeals of interference decisions from 1870 until 1893, while continuing to provide for appeals from rejections of patent applications (where opportunistic delays posed less serious problems). Although interference parties sometimes raised legal challenges to these review structures, they reached a dead end in the Supreme Court, which throughout the nineteenth century deferred to Congress’s authority to design the system. Finally, in 1939, after a century of trial and error, the Patent Office convinced Congress to eliminate all internal appeals in interference cases within the Patent Office, to authorize the Patent Office to issue patents based on its frontline adjudications of priority, and to shift review of interference decisions entirely to the courts. Again, this change did not apply to rejections of patent applications, which were still reviewed internally before they could be appealed to the courts. Both the great variety of appeal structures enacted over the years and the repeated divergence in the treatment of appeals of interferences and rejections support our emphasis on the primary role that pragmatic concerns played in the evolving division of labor between the Patent Office and the courts. This history reveals flexible adaptation over time rather than conformity to a standard model of separation of powers traceable to the framers.
US Patent Office, 1891 (LC)
--Dan Ernst
