'Who's Afraid of the Federal Circuit'

11 Pages Posted: 22 Dec 2011

See all articles by Arti K. Rai

Arti K. Rai

Duke University School of Law; Duke Innovation & Entrepreneurship Initiative

Date Written: December 20, 2011


In this brief Essay, I respond to Professor Jonathan Masur's Yale Law Journal article "Patent Inflation." Professor Masur's argument rests on the assumption that U.S. Patent and Trademark Office ("PTO") behavior is determined almost entirely by a desire to avoid reversal by the Federal Circuit. Although the PTO is certainly a weak agency over which the Federal Circuit has considerable power, Masur overestimates the extent to which high-level PTO administrators are concerned about Federal Circuit reversals and underestimates institutional influences that are likely to operate in a deflationary direction. The PTO is influenced not only by the Federal Circuit but also by executive branch actors, industry players, and workload concerns that can push in a deflationary direction.

Keywords: patents, administrative law, federal circuit

JEL Classification: K23

Suggested Citation

Rai, Arti Kaur, 'Who's Afraid of the Federal Circuit' (December 20, 2011). Available at SSRN: https://ssrn.com/abstract=1975138 or http://dx.doi.org/10.2139/ssrn.1975138

Arti Kaur Rai (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Duke Innovation & Entrepreneurship Initiative ( email )

215 Morris St., Suite 300
Durham, NC 27701
United States

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