Over at the IP/patent law blog Written Description, Lisa Ouellette has a very thoughtful post on The New World of Agency Adjudication, my new paper with Melissa Wasserman that is forthcoming in the California Law Review next year.
Here’s the first and last paragraph:
Christopher Walker is a leading administrative law scholar, and Melissa Wasserman‘s excellent work on the PTO has often been featuredonthisblog, so when the two of them teamed up to study how the PTAB fits within broader principles of administrative law, the result—The New World of Agency Adjudication (forthcoming Calif. L. Rev.)—is self-recommending. With a few notable exceptions (such as a 2007 article by Stuart Benjamin and Arti Rai), patent law scholars have paid relatively little attention to administrative law. But the creation of the PTAB has sparked a surge of interest, including multiple Supreme Court cases and a superb symposium at Berkeley earlier this month (including Wasserman, Rai, and many others). Walker and Wasserman’s new article is essential reading for anyone following these recent debates, whether you are interested in specific policy issues like PTAB panel stacking or more general trends in administrative review.
The New World of Agency Adjudication is of obvious interest to the patent law community, but I think it is also likely to appeal to administrative law scholars more generally. I don’t think Walker and Wasserman have fully resolved the seeming contradiction between the clear legality of agency-head review and the potential due process violation of panel stacking, and this seems like an excellent opportunity for administrative law scholars to further investigate the theoretical justifications for agency-head review and the underdeveloped caselaw on the due process requirements of administrative adjudication. The USPTO also seems like a good context to study the tension between decisional independence of administrative decisionmakers and the need for quality improvement programs (see, e.g., p. 88 of Dan Ho’s excellent article on agency peer review). I look forward to reading the many Notes and Articles that will surely build on this work—and to seeing how the USPTO and the Federal Circuit respond to Walker and Wasserman’s call.
You can read the full post over at Written Description here.