Post by Patrick Goold
Intellectual property law is, in many ways, part of American private law. IP rights are commonly viewed as a type of property right (see e.g. here and here), and courts have historically been the dominant institution for enforcement of those rights. However, today IP law-making and adjudication is increasingly performed by administrative agencies. The Patent Trial and Appeal Board decides over one thousand validity actions yearly through its new inter partes review procedure, and the U.S. Patent and Trademark Office claims entitlement to Chevron deference on a range of issues. Consequently, some have questioned whether the increasing role of administrative agencies takes a matter of private law out of courts’ hands in a way that breaches the separation of powers. On the other hand, many support the increasingly administrative character of IP law (see e.g. here and here). Administrative agencies not only have the resources, but also the expertise, necessary to deal with the ever-more complex IP system.
To debate the role of administrative law-making and adjudication in IP, on March 29, the Project on the Foundations of Private Law at Harvard Law School hosted a conference on The Administrative-Private Law Interface in IP. This conference brought together scholars, policy-makers, and practitioners to discuss the role of the administrative state in IP law in the 21st century.
After a welcome by John Manning (Harvard Law School), opening remarks were provided by The Honorable David Kappos (Cravath, and former Director of the USPTO). Mr. Kappos’s remarks set out his view of the balance that needs to be struck between the interests of innovators and implementers in a variety of areas, and more specifically warned that antitrust agencies with expansive views of their remit need to recalibrate the balance between securing competition in the short-run and promoting innovation in the long-run.
Panel I was entitled Do Administrative Law and Private Law Mix in IP? This panel provided an overview of the interaction between administrative law and private law in the IP field, and provided a platform for the rest of the day’s discussion. The panelists were Arti Rai (Duke University School of Law), Todd Rakoff (Harvard Law School), Kali Murray (Marquette University School of Law), and the Honorable F. Scott Kieff (George Washington University School of Law, and former Commissioner of the International Trade Commission). Professor Ruth Okediji (Harvard Law School) moderated.
Panel II dived into the debate surrounding the current Supreme Court case of Oil States v. Greene’s Energy. This case, discussed previously on the NPL blog here, here, and here, asks whether the Patent Trial and Appeal Board’s Inter Partes Review procedure violates the Constitution by extinguishing private property rights through a non-Article III forum without a jury. Professor John Golden (University of Texas School of Law) moderated what was a very lively and exciting panel. The panelists were Adam Mossoff (George Mason University, Antonin Scalia Law School), Sophie Wang (Choate LLP and Boston Patent Law Association), John Duffy (University of Virginia School of Law), and Caleb Nelson (University of Virginia School of Law).
Panel III turned to the issues of deference and preclusion. How much deference should courts give to administrative agency decisions (such as those made by the USPTO)? And when should administrative decisions preclude parties later bringing claims in court? Eric Claeys (George Mason University, Antonin Scalia Law School and Visiting Professor at Harvard Law School) moderated. The panelists were Melissa Wasserman (University of Texas School of Law), Megan La Belle (Catholic University of America, Columbus School of Law), Kristin Hickman (University of Minnesota Law School), and John Golden (University of Texas School of Law).
Panel IV then turned to the role antitrust agencies should play in IP. Erik Hovenkamp (Harvard Law School) moderated. The panelists were Keith Hylton (Boston University School of Law), Anne Layne-Farrar (Charles River Associates and Northwestern University Pritzker School of Law), and Scott Hemphill (NYU School of Law). Unfortunately, no video could be recorded for this panel.
And finally, a rousing closing speech was delivered by The Honorable James Smith (Ecolab, and former Chief Judge of the Patent Trial and Appeal Board). Mr. Smith’s prior role at the PTAB gave him a unique perspective on the conference theme. In his speech, Mr. Smith asked the audience to imagine he was running for Congress on a platform of improving American innovation. He then outlined a series of reforms which he saw as necessary for strengthening patent rights to make American IP great again.
Lastly, thank you to the University of Texas (and to Professor John Golden in particular) for co-organizing the event, and thank you to Qualcomm for sponsoring it.