The AIA ushered in a wide range of new powers for the Administrative State, particularly the USPTO, while at the same time limiting or outright aiming to remove judicial review. At a minimum, the AIA, and the courts’ interpretation of it, have added significant power to an agency that already wielded bone-crushing power over inventors and our innovation economy.
So what do meat price controls of the New Deal bureaucracy have to do with patent law? A new article in the Harvard Journal of Law and Public Policy on the Yakus case discusses how the piecemeal approach to analyzing administrative law issues has enabled significant expansion of administrative powers at the cost of civil liberties. Yakus and the Administrative State. The Yakus case involved meat price controls set by an administrative agency in the early 40s. The laws and rules implementing the New Deal approach were written in a way to eliminate judicial review and frustrate any challenge by the public to the broad authority of the agency. Albert Yakus, president of the Brighton Packing Company, mounted an unsuccessful challenge as detailed in the article.
The authors make several points that, if you simply substitute “patents rights” for “meat prices” and the “USPTO” for the “OPA” ring true today. Consider the following summary:
… the [statute] entrusted OPA with virtually boundless discretion to set prices across the entire economy. Its administrative procedures were designed to frustrate regulated parties while presenting a mirage of fairness. And the statute’s judicial review provisions were carefully calculated to block effective judicial review—even as the statute mobilized federal and state courts to enforce OPA’s dictates. Arguably, Congress had enacted comparable provisions in earlier statutes, and the Supreme Court had sustained those enactments. But the EPCA’s individual mechanisms and provisions had never been presented, let alone been judicially sanctioned, in combination, and in a form that threatened to accomplish what Congress and the Executive may not do directly: sport away the rights of individuals, and make the courts accomplices in the enterprise.
Patent applicants with limited resources can find themselves financially unable to withstand the onslaught of bureaucratic hoops that can sometimes be required of a merciless administrative state agency like the USPTO. Certainly many applicants are treated fairly and on average the USPTO maintains a relatively even hand. But when it doesn’t, even if the applicant has significant financial resources, the USPTO can be a brick wall reinforced by steel girders and tons of cement.
The Yakus case, and the above-cited article’s review of it, provide a great opportunity to compare with the USPTO and many old and new patent laws and regulations.