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    Yale Law Journal: Volume 121, Number 3 - December 2011
    Yale Law Journal: Volume 121, Number 3 - December 2011
    Yale Law Journal: Volume 121, Number 3 - December 2011
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    Yale Law Journal: Volume 121, Number 3 - December 2011

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    This issue of The Yale Law Journal (the third issue of Volume 121, academic year 2011-2012) features articles on "patent inflation" and on implementing federal health care reform within a state under principles of federalism. Contributors include the noted scholars Jonathan Masur and Abbe Gluck.

    The issue also features student contributions on punitive damages in tort law, taxation and "common control" doctrine, and the proper role of the Solicitor General.

    LanguageEnglish
    PublisherQuid Pro, LLC
    Release dateApr 18, 2014
    ISBN9781610279680
    Yale Law Journal: Volume 121, Number 3 - December 2011
    Author

    Yale Law Journal

    The editors of The Yale Law Journal are a group of Yale Law School students, who also contribute Notes and Comments to the Journal’s content. The principal articles are written by leading legal scholars.

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      Book preview

      Yale Law Journal - Yale Law Journal

      THE YALE LAW JOURNAL

      VOLUME 121, NUMBER 3

      DECEMBER 2011

      Yale Law School

      New Haven, Connecticut

      Yale Law Journal

      Smashwords edition: published by Quid Pro Books, at Smashwords. Copyright © 2011 by The Yale Law Journal Company, Inc. All rights reserved. This work or parts of it may not be reproduced, copied or transmitted (except as permitted by sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), by any means including voice recordings and the copying of its digital form, without the written permission of the print publisher. Further information on copyright, permissions, and reprints is found at the Responses page.

      The publisher of various editions and formats is The Yale Law Journal, who exclusively authorized Quid Pro to digitally publish its issues in ebook editions; so published, for The Yale Law Journal, by Quid Pro Books. Available in all major digital formats and at leading ebook retailers and booksellers.

      Quid Pro Books

      Quid Pro, LLC

      5860 Citrus Blvd., suite D-101

      New Orleans, Louisiana 70123

      www.quidprobooks.com

      Ebook cataloging for December 2011 Issue:

      ISBN: 1610279689 (ePub)

      ISBN-13: 9781610279680 (ePub)

      CONTENTS

      ARTICLE

      PATENT INFLATION

      By Jonathan Masur

      (121 YALE L.J. 470)

      ESSAY

      INTRASTATUTORY FEDERALISM AND STATUTORY INTERPRETATION: STATE IMPLEMENTATION OF FEDERAL LAW IN HEALTH REFORM AND BEYOND

      By Abbe R. Gluck

      (121 YALE L.J. 534)

      NOTES

      COMMON CONTROL AND THE DELINEATION OF THE TAXABLE ENTITY

      By Michael Aikins

      (121 YALEL L.J. 624)

      RECONCILING PUNITIVE DAMAGES WITH TORT LAW’S NORMATIVE FRAMEWORK

      By Amir Nezar

      (121 YALE L.J. 678)

      COMMENT

      THE SOLICITOR GENERAL OF THE UNITED STATES: TENTH JUSTICE OR ZEALOUS ADVOCATE?

      By Adam D. Chandler

      (121 YALE L.J. 725)

      RESPONSES. The Yale Law Journal invites short papers responding to scholarship appearing in the Journal within the last year. Responses should be submitted to The Yale Law Journal Online at http://yalelawjournal.org/submissions.html. We cannot guarantee that submitted responses will be published. Those responses that are selected for publication will be edited with the cooperation of the author.

      The Yale Law Journal is published eight times a year (monthly from October through June, excluding February) by The Yale Law Journal Company, Inc. Editorial and general offices are located in the Sterling Law Building at Yale University. POSTMASTER: Send address changes to The Yale Law Journal, P.O. Box 208215, New Haven, Connecticut 06520-8215.

      SUBSCRIPTIONS. A year subscription for Volume 121 is $55.00 payable in advance (please see our website for overseas shipping charges). Remittance must be made by U.S. Dollar drafts payable at a U.S. bank. Unfortunately, we are not able to accept payments in cash or by credit card. Subscription requests received after the first issue of a volume has been printed will run for eight consecutive issues unless otherwise indicated by the subscriber. Subscription backstarting is not permitted to include prior volume years. Overseas delivery is not guaranteed.

      CLAIMS. Domestic claims for non-receipt of issues should be made within 90 days of the month of publication, overseas claims within 180 days; thereafter, the regular back issue rate will be charged for replacement. All subscriptions will be renewed automatically unless the subscriber provides timely notice of cancellation prior to the start of a new volume year. Address changes must be made at least two months before publication date. Please provide an old mailing label or the entire old address; the new address must include the ZIP code. Address changes or other requests for subscription information should be directed to the Business Manager.

      SINGLE AND BACK ISSUES. Each issue of Volume 121 of the Journal can be purchased prepaid from The Yale Law Journal Company, Inc. for $25 (check must accompany order). For Connecticut deliveries, add 6% state sales tax. Remittance must be made by U.S. Dollar drafts payable to a U.S. bank. Unfortunately, we are not able to accept payments in cash or credit card. To purchase back issues from Volumes 1-120, please contact William S. Hein and Company, Inc., 1285 Main Street, Buffalo, New York 14209, (800) 828-7571. Back issues can also be found in electronic format on HeinOnline (http://heinonline.org/).

      MANUSCRIPTS. The Journal invites the submission of unsolicited articles, essays, and book reviews. Manuscripts must be submitted online at http://yalelawjournal.org/submissions.html.

      COPYRIGHT. Copyright © 2011 by The Yale Law Journal Company, Inc. Requests for copyright permissions should be directed to Copyright Clearance Center, 222 Rosewood Drive, Danvers, MA 01923, (978) 750-8400, http://www.copyright.com/.

      PRODUCTION. Citations in the Journal conform to The Bluebook: A Uniform System of Citation (19th ed. 2010), copyright by The Columbia Law Review Association, The Harvard Law Review Association, the University of Pennsylvania Law Review, and The Yale Law Journal. The Journal is printed by Joe Christensen, Inc., in Lincoln, Nebraska. Periodicals postage paid at New Haven, Connecticut, and additional mailing offices. Publication number ISSN 00440094

      INTERNET ADDRESS. The Yale Law Journal’s homepage is located at http://www.yalelawjournal.org.

      YALE LAW SCHOOL

      OFFICERS OF ADMINISTRATION

      Richard Charles Levin, B.A., B.Litt., Ph.D., President of the University

      Peter Salovey, A.B., M.A., Ph.D., Provost of the University

      Robert C. Post, A.B., J.D., Ph.D., Dean

      Douglas Kysar, B.A., J.D., Deputy Dean

      S. Blair Kauffman, B.S., B.A., J.D., LL.M., M.L.L., Law Librarian

      Megan A. Barnett, B.A., J.D., Associate Dean

      Sharon C. Brooks, B.A., J.D., Assistant Dean

      Toni Hahn Davis, B.A., J.D., M.S.W., LL.M., Associate Dean

      Brent Dickman, B.B.A., M.B.A., Associate Dean

      Mark LaFontaine, B.A., J.D., Associate Dean

      Asha Rangappa, A.B., J.D., Associate Dean

      Mike K. Thompson, B.A., M.B.A., J.D., Associate Dean

      FACULTY EMERITI

      Guido Calabresi, B.S., B.A., LL.B., M.A., Dr.Jur., LL.D., D.Phil., H.Litt.D., D.Poli.Sci., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Dennis E. Curtis, B.S., LL.B., Clinical Professor Emeritus of Law and Professorial Lecturer in Law

      Harlon Leigh Dalton, B.A., J.D., Professor Emeritus of Law

      Carroll L. Lucht, B.A., M.S.W., J.D., Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      Mirjan Radovan Damaška, LL.B., Dr.Jur., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Jan Ginter Deutsch, LL.B., Ph.D., Walter Hale Hamilton Professor Emeritus of Law and Professorial Lecturer in Law

      Owen M. Fiss, B.A., B.Phil., LL.B., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Michael J. Graetz, B.B.A., LL.B., LL.D., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law

      Quintin Johnstone, B.A., J.S.D., Justus S. Hotchkiss Professor Emeritus of Law

      Carol M. Rose, B.A., M.A., J.D., Ph.D., Gordon Bradford Tweedy Professor Emeritus of Law and Organization, and Professorial Lecturer in Law

      Peter H. Schuck, B.A., M.A., J.D., LL.M., Simeon E. Baldwin Professor Emeritus and Professor (Adjunct) of Law

      John G. Simon, B.A., LL.B., LL.D., Augustus E. Lines Professor Emeritus of Law and Professorial Lecturer in Law

      Stephen Wizner, A.B., J.D., William O. Douglas Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      FACULTY

      †  Bruce Ackerman, B.A., LL.B., Sterling Professor of Law and Political Science

      Muneer I. Ahmad, A.B., J.D., Clinical Professor of Law

      Anne L. Alstott, A.B., J.D., Professor of Law

      ‡  Akhil Reed Amar, B.A., J.D., Sterling Professor of Law

      Ian Ayres, B.A., J.D., Ph.D., William K. Townsend Professor of Law

      Jack M. Balkin, A.B., J.D., Ph.D., Knight Professor of Constitutional Law and the First Amendment

      Aharon Barak, LL.M., Dr.Jur., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)

      Barton Beebe, B.A., Ph.D., J.D., Anne Urowsky Visiting Professor of Law (fall term)

      Raymond Brescia, B.A., J.D., Visiting Clinical Associate Professor of Law

      Lea Brilmayer, B.A., J.D., LL.M., Howard M. Holtzmann Professor of International Law

      †  Richard R.W. Brooks, B.A., M.A., Ph.D., J.D., Leighton Homer Surbeck Professor of Law

      ‡  Robert A. Burt, B.A., M.A., J.D., Alexander M. Bickel Professor of Law

      Guido Calabresi, B.S., B.A., LL.B., M.A., Dr.Jur., LL.D., D.Phil., H.Litt.D., D.Poli.Sci., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      ‡  Stephen Lisle Carter, B.A., J.D., William Nelson Cromwell Professor of Law

      ‡  Amy Chua, A.B., J.D., John M. Duff, Jr. Professor of Law

      Jules L. Coleman, B.A., M.S.L., Ph.D., Wesley Newcomb Hohfeld Professor of Jurisprudence and Professor of Philosophy

      Dennis E. Curtis, B.S., LL.B., Clinical Professor Emeritus of Law and Professorial Lecturer in Law

      Hanoch Dagan, LL.B., LL.M., J.S.D., Visiting Professor of Law and Oscar M. Ruebhausen Distinguished Senior Fellow (fall term)

      Harlon Leigh Dalton, B.A., J.D., Professor Emeritus of Law

      Mirjan Radovan Damaška, LL.B., Dr.Jur., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Drew S. Days, III, B.A., LL.B., Alfred M. Rankin Professor Emeritus of Law and Professorial Lecturer in Law

      Jan Ginter Deutsch, B.A., LL.B., Ph.D., M.A., Walter Hale Hamilton Professor Emeritus of Law and Professorial Lecturer in Law

      Fiona Doherty, B.A., J.D., Visiting Clinical Associate Professor of Law

      ‡  Steven Barry Duke, B.S., J.D., LL.M., Professor of Law

      †  Robert C. Ellickson, A.B., LL.B., Walter E. Meyer Professor of Property and Urban Law

      Edwin Donald Elliott, B.A., J.D., Professor (Adjunct) of Law

      ‡  William N. Eskridge, Jr., B.A., M.A., J.D., John A. Garver Professor of Jurisprudence

      *  Daniel C. Esty, A.B., M.A., J.D., Hillhouse Professor of Environmental Law and Policy, School of Forestry & Environmental Studies; and Clinical Professor of Environmental Law and Policy, Law School

      Stanley Fish, B.A., M.A., Ph.D., Visiting Professor of Law and Oscar M. Ruebhausen Distinguished Senior Fellow (fall term)

      Owen M. Fiss, B.A., B.Phil., LL.B., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      ‡  James Forman Jr., A.B., J.D., Clinical Professor of Law

      Bryan Garsten, B.A., M.Phil., Ph.D., Professor (Adjunct) of Law (spring term)

      Heather K. Gerken, B.A., J.D., J. Skelly Wright Professor of Law

      ‡  Paul Gewirtz, B.A., J.D., Potter Stewart Professor of Constitutional Law

      Robert W. Gordon, A.B., J.D., Chancellor Kent Professor of Law and Legal History

      Michael J. Graetz, B.B.A., LL.B., LL.D., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law

      Dieter Grimm, LL.M., Dr.Jur., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (spring term)

      Lani Guinier, B.A., J.D., Visiting Professor of Law (fall term)

      ‡  Henry B. Hansmann, A.B., J.D., Ph.D., Augustus E. Lines Professor of Law

      Robert D. Harrison, B.A., J.D., Ph.D., Lecturer in Legal Method

      Oona Hathaway, B.A., J.D., Gerard C. and Bernice Latrobe Smith Professor of International Law

      Kristin Henning, B.A., J.D., LL.M., Sidley Austin-Robert D. McLean ’70 Visiting Clinical Professor of Law (spring term)

      Daniel E. Ho, B.A., A.M., Ph.D., J.D., Maurice R. Greenberg Visiting Professor of Law (spring term)

      Quintin Johnstone, B.A., J.S.D., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law

      Christine Jolls, B.A., J.D., Ph.D., Gordon Bradford Tweedy Professor of Law and Organization

      *  Dan M. Kahan, B.A., J.D., Elizabeth K. Dollard Professor of Law

      Paul W. Kahn, B.A., J.D., Ph.D., Robert W. Winner Professor of Law and the Humanities, and Director, Orville H. Schell, Jr. Center for International Human Rights

      Pamela S. Karlan, B.A., J.D., Visiting Professor of Law (fall term)

      S. Blair Kauffman, B.S., B.A., J.D., LL.M., M.L.L., Law Librarian and Professor of Law

      Daniel Kevles, B.A., Ph.D., Professor (Adjunct) of Law (spring term)

      Alvin K. Klevorick, B.A., M.A., Ph.D., John Thomas Smith Professor of Law and Professor of Economics

      *  Harold Hongju Koh, A.B., B.A., J.D., M.A., Martin R. Flug ’55 Professor of International Law

      *  Anthony Townsend Kronman, B.A., J.D., Ph.D., Sterling Professor of Law

      Douglas Kysar, B.A., J.D., Deputy Dean and Joseph M. Field ’55 Professor of Law

      John H. Langbein, A.B., LL.B., Ph.D., Sterling Professor of Law and Legal History

      Sanford Levinson, B.A., Ph.D., J.D., Visiting Professor of Law (fall term)

      *  Yair Listokin, A.B., M.A., Ph.D., J.D., Associate Professor of Law

      Carroll L. Lucht, B.A., M.S.W., J.D., Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      Jonathan R. Macey, A.B., J.D., Sam Harris Professor of Corporate Law, Corporate Finance, and Securities Law

      Miguel Maduro, Dr.Jur., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)

      †  Daniel Markovits, B.A., M.Sc., D.Phil., J.D., Professor of Law

      ‡  Jerry Louis Mashaw, B.A., LL.B., Ph.D., Sterling Professor of Law

      Tracey L. Meares, B.S., J.D., Walton Hale Hamilton Professor of Law

      Noah Messing, B.A., J.D., Lecturer in the Practice of Law and Legal Writing

      Jeffrey A. Meyer, B.A., J.D., Visiting Professor of Law

      Samuel Moyn, B.A., M.A., Ph.D., J.D., Irving S. Ribicoff Visiting Professor of Law (spring term)

      Nicholas Parrillo, A.B., M.A., J.D., Associate Professor of Law

      †  Jean Koh Peters, A.B., J.D., Sol Goldman Clinical Professor of Law and Supervising Attorney

      Robert C. Post, A.B., J.D., Ph.D., Dean and Sol & Lillian Goldman Professor of Law

      J.L. Pottenger, Jr., A.B., J.D., Nathan Baker Clinical Professor of Law and Supervising Attorney

      †  Claire Priest, B.A., J.D., Ph.D., Professor of Law

      ‡  George L. Priest, B.A., J.D., Edward J. Phelps Professor of Law and Economics and Kauffman Distinguished Research Scholar in Law, Economics, and Entrepreneurship

      William Michael Reisman, B.A., J.S.D., Myres S. McDougal Professor of International Law

      Judith Resnik, B.A., J.D., Arthur Liman Professor of Law

      Roberta Romano, B.A., M.A., J.D., Sterling Professor of Law and Director, Yale Law School Center for the Study of Corporate Law

      Carol M. Rose, B.A., M.A., J.D., Ph.D., Gordon Bradford Tweedy Professor Emeritus of Law and Organization, and Professorial Lecturer in Law

      †  Susan Rose-Ackerman, B.A., Ph.D., Henry R. Luce Professor of Jurisprudence (Law School and Department of Political Science)

      Jed Rubenfeld, A.B., J.D., Robert R. Slaughter Professor of Law

      Peter H. Schuck, B.A., M.A., J.D., LL.M., Simeon E. Baldwin Professor Emeritus of Law and Professor (Adjunct) of Law

      Vicki Schultz, B.A., J.D., Ford Foundation Professor of Law

      †  Alan Schwartz, B.S., LL.B., Sterling Professor of Law

      Ian Shapiro, B.Sc., M.Phil., Ph.D., J.D., Professor (Adjunct) of Law (spring term)

      Scott J. Shapiro, B.A., J.D., Ph.D., Professor of Law and Philosophy

      Robert J. Shiller, B.A., Ph.D., Professor (Adjunct) of Law (fall term)

      †  Reva Siegel, B.A., M.Phil., J.D., Nicholas deB. Katzenbach Professor of Law

      James J. Silk, A.B., M.A., J.D., Clinical Professor of Law, Allard K. Lowenstein International Human Rights Clinic, and Executive Director, Orville H. Schell, Jr. Center for International Human Rights

      John G. Simon, B.A., LL.B., LL.D., Augustus E. Lines Professor Emeritus of Law and Professorial Lecturer in Law

      Robert A. Solomon, B.A., J.D., Clinical Professor of Emeritus of Law

      Kate Stith, A.B., M.P.P., J.D., Lafayette S. Foster Professor of Law

      Alec Stone Sweet, B.A., M.A., Ph.D., Leitner Professor of International Law, Politics, and International Studies

      Gerald Torres, A.B., J.D., LL.M., Maurice R. Greenberg Visiting Professor of Law (fall term)

      James Q. Whitman, J.D., Ph.D., Ford Foundation Professor of Comparative and Foreign Law

      Ralph Karl Winter, Jr., B.A., LL.B., Professor (Adjunct) of Law

      Michael J. Wishnie, B.A., J.D., Clinical Professor of Law and Director, Jerome N. Frank Legal Services Organization

      †  John Fabian Witt, B.A., J.D., Ph.D., Allen H. Duffy Class of 1960 Professor of Law

      Stephen Wizner, A.B., J.D., William O. Douglas Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      Howard V. Zonana, B.A., M.D., Professor of Psychiatry and Clinical Professor (Adjunct) of Law

      *  On leave of absence, 2010–2011.

      †  On leave of absence, fall term, 2010–2011.

      ‡  On leave of absence, spring term, 2011.

      LECTURERS IN LAW

      John C. Balzano, B.A., M.A., J.D.

      Nicholas Bramble, B.A., M.A., J.D.

      Adam S. Cohen, A.B., J.D.

      Linda Greenhouse, B.A., M.S.L., Joseph Goldstein Lecturer in Law

      Lucas Guttentag, A.B., J.D.

      Jamie P. Horsley, M.A., J.D.

      Katherine Kennedy, A.B., J.D., Timothy B. Atkeson Environmental Lecturer in Law

      Theresa J. Lee, B.A., M.A., J.D.

      Jeffrey M. Prescott, B.A., J.D., (on leave)

      Jamin Raskin, B.A., J.D.

      Sia Sanneh, B.A., M.A., J.D.

      Daniel Wade, B.A., M.A., M.Div., M.S., J.D.

      VISITING LECTURERS IN LAW

      Josh Abramowitz, B.A., J.D.

      Guillermo Aguilar-Alvarez, Lic. en Derecho (J.D.)

      Stephen Bright, B.A., J.D., Harvey Karp Visiting Lecturer in Law

      G. Eric Brunstad, Jr., B.A., J.D., LL.M.

      Cynthia Carr, B.A., J.D., LL.M.

      Brett Cohen, B.A., J.D.

      Eugene R. Fidell, B.A., LL.B., Florence Rogatz Visiting Lecturer in Law

      Lawrence J. Fox, B.A., J.D., George W. and Sadella D. Crawford Visiting Lecturer in Law

      Eugene Garver, A.B., Ph.D.

      Nancy Gertner, B.A., M.A., J.D.

      Frank Iacobucci, LL.B., LL.M., Gruber Global Constitutionalism Fellow and Visiting Lecturer in Law

      Benjamin Heineman, B.A., B.Litt., J.D.

      Howard Kahn, A.B., Ph.D.

      Brett M. Kavanaugh, B.A., J.D.

      Mark R. Kravitz, B.A., J.D.

      Daryl J. Levinson, A.B., M.A., J.D.

      Barbara Marcus, B.A., M.S., Ph.D.

      Braxton McKee, M.D.

      Andrew J. Pincus, B.A., J.D.

      Charles A. Rothfeld, A.B., J.D.

      John M. Samuels, B.A., J.D., LL.M.

      David A. Schultz, B.A., M.A., J.D.

      Michael Solender, B.A., J.D.

      Ko-Yung Tung, B.A., J.D.

      Stefan Underhill, B.A., J.D.

      Neil Walker, LL.B., Ph.D.

      John M. Walker, Jr., B.A., J.D.

      THE YALE LAW JOURNAL

      VOLUME 121

      Patent Inflation

      Jonathan Masur

      121 YALE L.J. 470 (2011)

      Patent Inflation

      JONATHAN MASUR

      [CITE AS 121 YALE L.J. 470 (2011)]

      ABSTRACT. For more than two decades, the Patent and Trademark Office (PTO) and the Federal Circuit have exercised nearly complete institutional control over the patent system. Yet in recent years their stewardship has been widely criticized, largely on the basis of two particular failings. First, the PTO grants significant numbers of invalid patents, patents that impose substantial costs on innovative firms. And second, over time the Federal Circuit has steadily loosened the rules governing patentability, allowing ever more patents over a greater range of inventions. This Article argues that both of these modern trends may be attributable in whole or in part to the asymmetric institutional relationship between the PTO and the Federal Circuit. If a patent applicant is denied a patent by the PTO, she can appeal that denial to the Federal Circuit. However, if the PTO grants the patent, no other party has the right to appeal. Accordingly, the PTO can avoid appeals and reversals, both of which are costly in monetary and reputational terms, simply by granting any patent that the Federal Circuit might plausibly allow. Because the PTO will grant nearly any plausible patent, the vast majority of rejected applications that are appealed to the Federal Circuit will concern boundary-pushing inventions that are unpatentable under current law. Occasionally, a particularly patent-friendly panel of Federal Circuit judges will elect to reverse the PTO and grant a patent that the Agency has denied. The Federal Circuit’s decision will create a new, inflationary precedent. The boundaries of patentability will expand slightly, as this new precedent exerts influence on the other circuit judges. And as the Federal Circuit’s conception of what may be patented expands, the PTO will similarly inflate its own standards in order to maintain an adequate margin for error and avoid denying a patent that the Federal Circuit is likely to grant on appeal. Patent law will thus be subject to a natural inflationary pressure.

      AUTHOR. Assistant Professor of Law and Herbert and Marjorie Fried Teaching Scholar, University of Chicago Law School. I thank Kenneth Bamberger, Omri Ben-Shahar, Eric Biber, Frederic Bloom, John Bronsteen, Adam Cox, John Duffy, Lee Fennell, Michael Gilbert, Bernard Harcourt, Scott Hemphill, William Hubbard, Bart Kosko, Mark Lemley, Saul Levmore, Irina Manta, Richard McAdams, David McGowan, Lars Noah, Anne Joseph O’Connell, Eric Posner, Richard Posner, Arti Rai, Benjamin Roin, Julie Roin, Adam Samaha, Dave Schwartz, Matthew Stephenson, Lior Strahilevitz, David Weisbach, and participants at the 2011 Stanford-Yale Junior Faculty Forum, the 2010 Intellectual Property Scholars Conference, and faculty workshops at Columbia Law School, the University of Chicago Law School, the University of Southern California School of Law, the University of Virginia Law School, and Yale Law School for helpful comments and conversations. I also thank Katherine Arnold, Jamie Bagliebter, Karen Bradshaw, Mark Geiger, Faye Paul, Anthony Sexton, and Nathan Viehl for excellent research assistance. This work was supported by the David and Celia Hilliard Fund.

      ARTICLE CONTENTS

      INTRODUCTION

      I. PATENT PROBLEMS

      II. PATENT EXPANSION

      A. Error-Free PTO and Federal Circuit

      B. Error-Prone or Noisy PTO, Error-Free Federal Circuit

      C. Error-Free PTO, Error-Prone or Noisy Federal Circuit

      1. Issued Patents

      2. The Contours of Patent Law

      D. The Patent Office and Federal Circuit in Reality

      1. The PTO

      2. The Federal Circuit

      3. The Parties’ Interaction

      4. Granted Patents and Expansionary Doctrine

      5. Patent Inflation and Suits for Infringement

      E. A Strategic Federal Circuit

      F. Outside Actors and Patent Remedies

      III. THE PATENTING OF SOFTWARE AND BUSINESS METHODS

      A. Software Patents, Business Methods, and State Street Bank

      B. Bilski in the Courts

      C. The PTO’s Response

      CONCLUSION

      INTRODUCTION

      The shape of patent law is defined in large degree by the interaction between two institutions: the Court of Appeals for the Federal Circuit and the Patent and Trademark Office (PTO). Intervention from Congress or the Supreme Court comes rarely—Congress went nearly sixty years without significantly altering substantive patent law,¹ and until very recently the Supreme Court has generally been reluctant to weigh in on many of the most important patent questions.² In their absence, the Federal Circuit and the PTO have arrived at an institutional détente. The Federal Circuit dictates the rules of substantive patent law to the Patent Office via interpretations of the Patent Act.³ The PTO then grants or denies patents according to those rules.⁴

      Yet this structural accord has not well served the patent system or the private parties who rely on it. In recent years both the PTO and the Federal Circuit have received trenchant criticism for their handling (and mishandling) of patent applications and patent cases. Critics have leveled two particular charges: first, that the PTO grants too many invalid patents;⁵ and second, that the Federal Circuit has steadily loosened the legal rules governing patentability, allowing applicants to obtain patents on an ever wider variety of inventions.⁶ The first criticism is all the more remarkable in light of the second. Despite the fact that the Federal Circuit has noticeably expanded the boundaries of what may be patented over the past decades, the PTO continues to grant significant numbers of patents that are invalid under governing Federal Circuit law.

      Scholars have attributed the patent system’s joint dysfunctions—an excess of invalid patents and overly permissive rules of patentability—to a number of potential causes. These include funding shortfalls at the PTO; internal management problems at the PTO; a lack of expertise at the PTO or the Federal Circuit; capture by private interests; and, perhaps most importantly, a simple ideological preference for greater numbers of patents across a broader range of technologies.⁷ Nonetheless, there remains sharp disagreement regarding the likely causes of these systemic problems and their proper solutions. Indeed, a variety of correctives have been proposed and implemented, to little avail.⁸

      This Article intends to offer a different explanation for the problems plaguing the patent system. The permissive nature of the PTO and the inflationary tendencies of the Federal Circuit might instead be due to the contorted institutional relationship that exists between the two organizations. Because of the manner in which patent cases make their way from the PTO to the Federal Circuit, the PTO has a decided institutional interest in granting more patents than it should. And because of this same interaction, the Federal Circuit is engaged in an unwitting expansion of the patentability rules.

      The key lies with the asymmetric nature of appeals from the PTO to the Federal Circuit. When the PTO denies a patent application, the aggrieved applicant may appeal to the Federal Circuit.⁹ When the PTO grants a patent, however, there is no losing party to appeal—the victorious applicant merely walks away with its patent.¹⁰ That patent is unlikely ever to see the inside of a courtroom, given how few infringement lawsuits are litigated.¹¹ Like most administrative agencies, the PTO wishes to avoid appeals and especially reversals.¹² In order for the Agency to accomplish this, it need only err on the side of granting excessive numbers of patents—even invalid patents—for which there is no appeal. This desire to avoid litigation is a source of the invalid patents now being issued by the PTO in vast numbers—the patent system’s first problem.

      The second problem, the ongoing expansion of the rules governing what types of inventions may be patented, stems from the PTO’s proclivity to grant any plausible patent. Because of the PTO’s efforts, the patent applications that the Agency denies will predominantly concern inventions that are unpatentable under current law.¹³ When a disappointed patent applicant appeals such an application to the Federal Circuit, that court has two options. It can reject the patent under existing law, preserving the law as it stands, or it can grant the patent under a new, more expansive understanding of what is patentable. The circuit denies most of these applications.¹⁴ But when the Federal Circuit eventually decides a case in favor of an applicant, it creates a new precedent that enlarges the scope of what may be patented. The process then repeats itself, with the PTO denying more boundary-pushing patent applications and the Federal Circuit being presented with further opportunities to expand the limits of patentability. The result is a natural inflationary pressure on the law, generated entirely by the types of cases that the PTO sends to the Federal Circuit.

      These effects rely on only three innocuous factors. First, the PTO—through its administrators—pursues its own organizational interests. Second, the Federal Circuit is composed of heterogeneous judges who do not always agree on the proper content of patent law. This means that a patent applicant could draw a favorable Federal Circuit panel and be granted a patent that the median Federal Circuit judge would find invalid. And third, the PTO is asymmetric. Only an applicant whose patent has been rejected may appeal a PTO decision to the Federal Circuit. Using only these three institutional features of the patent system, this Article builds a model of the interaction between the PTO, Federal Circuit, and patent applicants, which predicts that improperly granted patents will expand the legal boundaries of patentability.¹⁵

      This Article thus identifies a novel institutional source for the patent system’s problems. The goal is not to demonstrate that the other possible causes of patent inflation—ideology, lack of expertise, and so forth—are incorrect. It is possible that some of these causes are at work alongside the institutional pressures described here. But it is crucial to note that even if all of these other potential causes were eliminated, the systemic problems of bad patents and expanding patent law would remain, driven by the institutional relationship between the PTO and Federal Circuit. Accordingly, this Article suggests a legal solution that would directly address these institutional issues at their source.

      Finally, the interaction between the PTO and the Federal Circuit is uncommon but by no means unique. Nearly every type of civil litigation or administrative proceeding produces winning and losing parties, either of whom can appeal to the federal courts. This is of course true for standard civil trials, and it is true as well for essentially every federal administrative action, from promulgating major regulations¹⁶ to individual funding¹⁷ or permitting decisions.¹⁸ Yet asymmetric systems of review exist in several important areas of federal benefits law (such as Social Security Disability benefits),¹⁹ immigration law,²⁰ tax law,²¹ and—most importantly—jury verdicts in criminal law.²² Indeed, even systematically different rates of appeal by civil litigants—for instance, perhaps tort defendants appeal adverse judgments more frequently than tort plaintiffs—can give rise to meaningful (though more muted) asymmetries in appellate review.²³ It is worth noting, however, that most of these other areas of law involve only the adjudication of private rights against the government. A Social Security claimant (or a criminal defendant) acquires no rights against other private actors. By contrast, the PTO and the Federal Circuit are in the business of granting patents that may then be asserted against third parties who were never involved in the proceedings. Patent law thus offers applicants a nearly unique opportunity to capitalize on institutional asymmetries to the detriment of outside actors.

      This Article proceeds in three parts. Part I briefly describes the complaints that scholars and stakeholders have registered against the Patent and Trademark Office, the Federal Circuit, and the patents (and patent law) that they have jointly produced. Part II explains and analyzes the interaction between the PTO and the Federal Circuit, beginning with a simple model and building toward a more nuanced description that incorporates the characteristics and motivations of the individuals in charge of those institutions. It also describes the roles of other actors within the patent system, offers an important testable prediction, and proposes a remedy to patent law’s institutional maladies. Part III presents a case study of the relationship between the PTO and the Federal Circuit concerning the evolving rules that undergird the patentability of intangible processes, an evolution that culminated in the Supreme Court’s recent decision in Bilski v. Kappos.²⁴ Part III shows how the forces described in Part II have effectively broadened the rules governing the patenting of software, business methods, and related inventions.

      I. PATENT PROBLEMS

      There is by now a broad consensus that the United States patent system is rife with flaws and inadequacies.²⁵ The patent crisis, as more than one commentator has termed it,²⁶ has become so severe that in many cases patents are now believed to retard innovation more than they promote it.²⁷ Critics of the patent system have pointed to two particular problems. First, the PTO does a poor job of examining patents, allowing significant numbers of invalid patents to issue.²⁸ Second, the Federal Circuit has pushed the law in an excessively pro-patent direction, broadening the scope of patentable subject matter and endowing patentees with unwarranted power.²⁹

      Critics have ascribed these failures to a wide range of causes. Some have pointed to the PTO’s lack of funding, which forces the Agency to spend relatively little time scrutinizing each patent.³⁰ Others have argued that the PTO is hamstrung by poor management.³¹ These management problems include the fact that the PTO’s salary and bonus system is structured in such a way as to incentivize examiners to grant rather than deny patents.³² Some scholars have placed blame on the fact that both the PTO and the Federal Circuit appear to lack genuine expertise in the technologies involved in modern patents.³³ Others allege that the PTO and the Federal Circuit have been captured by private, pro-patent interests.³⁴ Finally, and perhaps most importantly, some observers believe that the Federal Circuit simply holds an ever-increasing ideological preference for greater numbers of patents over a broader range of technologies.³⁵

      Regardless of the exact cause, invalid patents and permissive, pro-patent rules have imposed undeniable costs on inventors and consumers alike. Invalid, improperly granted patents can dissuade potential competitors from entering a market and stunt investment in further research.³⁶ They raise search costs for firms that must scrutinize the intellectual property that exists in a given field and investigate those patents’ validity, lest a competitor later force them out of the market.³⁷ Invalid patents can also hamper a firm’s ability to raise capital³⁸ or write contracts with potential customers.³⁹ Financial markets will be wary of firms that may not be sustainable because they traffic in infringing products. Customers will hesitate before forming business relationships that may expose them to suits for contributory infringement and will resist relying upon suppliers who may be shut down or driven out of the market by a lawsuit.⁴⁰ Invalid patents raise licensing and litigation costs.⁴¹ And once granted, they are difficult to eliminate: granted patents are presumed valid and can only be invalidated in court upon a showing of clear and convincing evidence.⁴²

      More broadly speaking, patents involve[] a fundamental tradeoff between dynamic and static efficiency: patents spur innovation but only at the cost of higher prices for current consumers.⁴³ If too many patents are granted on too many inventions, or if the courts allow patents to become too powerful, the balance could tilt against patents as socially useful devices. If patents no longer provided a significant incentive for innovation, they might not be worth the costs that they impose upon consumers.⁴⁴

      In response to the inadequacies of the Patent Office and the Federal Circuit, as well as the costs of bad patents, scholars have advanced a number of proposals for reform. Some have argued that the PTO should receive additional funding, enabling it to hire more and better examiners.⁴⁵ Others have suggested that patent examinations should be eliminated altogether, with patent examination reverting to a simple system of registration akin to the copyright regime.⁴⁶ Still others have argued that the problems should be left to the federal courts to sort out.⁴⁷

      Many of these proposals have been coupled with suggestions for meaningful inter partes post-grant administrative review, a mechanism by which potential infringers can challenge a patent’s validity without undertaking expensive litigation in federal courts.⁴⁸ A system of inter partes review already exists, but it imposes such disadvantages on third-party challengers that it is almost never used.⁴⁹ Some scholars recommend a multi-tiered system of patent review in which applicants can opt for one of several levels of PTO scrutiny with correspondingly strong ex post presumptions of validity.⁵⁰ And even more exotic proposals abound, including suggestions for tradable patent rights that would limit the number of patents in force at any given time,⁵¹ or even private competition in the market for patent examination.⁵² Finally, some commentators have begun to suggest abolishing the Federal Circuit entirely and returning to the prior system of jurisdictional competition between the generalist courts of appeal.⁵³

      Finding the correct solution depends, of course, on correctly diagnosing the problem. It is possible that some or all of the factors described above—funding, management, lack of expertise, capture, and ideology⁵⁴—have contributed to the proliferation of invalid patents and the unflagging expansion of patent rights. Nonetheless, this Article aims to demonstrate that the patent system’s failings can be explained instead as a consequence of the contorted institutional relationship between the PTO and the Federal Circuit.

      II. PATENT EXPANSION

      This Part presents a model of the interaction between three principal actors: the Federal Circuit, the PTO, and a patent applicant. The basic model proceeds in four stages. First, the patent applicant applies to the PTO for a patent. Second, the PTO decides whether to grant the patent. Officially, the PTO is an agent of the Federal Circuit; its role is to grant only those patents that the Federal Circuit would allow under governing law.⁵⁵ Third, if the PTO denies the patent, the applicant decides whether to appeal that denial to the Federal Circuit.⁵⁶ And fourth, the Federal Circuit decides the appeal (if there is one).

      Following attitudinal models of judging, which describe judges as having an ideal point⁵⁷—the point along a continuum of possible outcomes where they would prefer the law to land—the model describes Federal Circuit judges

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