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American University Law Review






The U.S. Court of Appeals for the Federal Circuit is the dominant institution in patent law. The court’s control over patent law and policy has led to a host of academic proposals to shift power away from the court and towards other institutions, including the U.S. Supreme Court, the U.S. Patent and Trademark Office, and federal district courts. Surprisingly, however, academics have largely dismissed Congress as a potential institutional check on the Federal Circuit. Congress, it is felt, is too slow, too divided, and too beholden to special interests to effectively monitor changes in innovation and respond with appropriate reforms.

This Article takes the opposite position. It proposes a prominent congressional role in patent policy, a role that extends beyond passing reform legislation. Congress’s relationship with the Federal Circuit is a dialogic one in which Congress often plays an initial role of catalyst and a final role of arbiter. Understanding Congress’s dialogic role in patent reform is not merely a theoretical exercise; this Article traces recent dialogic interactions between Congress and the Federal Circuit during the passage of the America Invents Act. The institutional framework proposed by this Article provides a promising alternative to continued Federal Circuit expansion over patent policy. Furthermore, dialogue between Congress and the Federal Circuit can improve decision making at the Federal Circuit while leveraging the relative advantages of both institutions in reforming the patent system.



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