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Abstract

The progression toward reevaluating patent validity in the administrative, rather than judicial, setting became overtly substitutionary in the America Invents Act. No longer content to encourage court litigants to rely on Patent Office expertise for faster, cheaper, and more accurate validity decisions, Congress in the AIA took steps to force a choice. The result is an emergent border between court and agency power in the U.S. patent system. By design, the border is not absolute. Concurrent activity in both settings over the same dispute remains possible. What is troubling is the systematic weakening of this border by Patent Office encroachments on powers Congress left to the courts. This Article traces the statutory roots of those encroachments, their initial encouragement by the Supreme Court’s 2016 Cuozzo decision, and the recent resistance to their further expansion by the en banc Federal Circuit’s 2018 Wi-Fi One decision. Section I introduces the institutional history that underpins these developments. Section II summarizes the reallocation of ex post validity review power from the district courts to the Patent Office over the last third of a century, putting important attributes of Patent Office review into an administrative law context. Section III describes the particular powers being reallocated and discusses the importance of these powers to a well-functioning system for governing innovation as patent law seeks to do. Section IV reviews the recent en banc Federal Circuit decision in Wi-Fi One v. Broadcom and discusses its implications for the patent powers at stake.

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