Friday, February 12, 2016

The Alternate Universe of Internet Scholars

A nice thing about the Internet, the saying goes, is that no one knows you're a dog.

You can write anything:
"The case for patent law ... exceptionalism in the administrative state" --Washington Post?

The USPTO does not promulgate rules pursuant to the APA? Really?

Is Intellectual Property Law Administrative Law? --Duke Law Journal Symposium (2/12/2016): Panel #1: S. Benjamin and A. Rai (presenters) & C. Walker (discussant)

Fixing Innovation Policy? --George Washington Law Review?
(In this Article, Professors Benjamin and Rai analyze how government policy on innovation should be structured. ... one might imagine that Congress would have created an entity with substantial expertise that would focus on how patents could best promote innovation. But that is not the case. Currently, neither the Patent and Trademark Office (“PTO”) nor the United States Court of Appeals for the Federal Circuit (which hears all patent appeals) has the capacity to promulgate such policy. The PTO lacks social science expertise, while the Federal Circuit not only lacks such expertise but typically disavows any role in articulating policy. )

Post Scripts:
Follow up article by Orin Kerr:
"the Supreme Court’s decision in Alice v. CLS Bank dramatically altered the rules governing the patentability of software and business methods. ... Because most of the key phrases in the Patent Act exude textual ambiguity, applying the deferential Chevron standards to the PTO would permit the PTO to adopt any “reasonable” interpretation of the Patent Act it chooses, at any time, and without explanation. "

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