The Yale Law Journal Online: Who’s Afraid of the Federal Circuit?
The Yale Law Journal Online has published the first essay in a series of responses to Jonathan Masur’s article Patent Inflation, published in the December 2011 issue of The Yale Law Journal. In his article, Masur posits that Patent and Trademark Office (PTO) administrators will be motivated to avoid costly appeals and direct reversals by the Federal Circuit and therefore will grant more patents than they otherwise should. These grants of “boundary-pushing” patents will touch off a process of “patent inflation” whereby patentability standards grow progressively more permissive. In Who’s Afraid of the Federal Circuit?, Arti K. Rai argues that by overlooking deflationary institutional pressures such as workload and reputational concerns, Masur overestimates the extent to which PTO administrators seek to avoid appeals and Federal Circuit reversals. In order to achieve further deflation, Rai suggests supplementing Masur’s proposed solution of using more PTO opposition proceedings with the empowerment of non-PTO players who are more wary of granting patents.
Preferred citation: Arti K. Rai, Who’s Afraid of the Federal Circuit?, 121 YALE L.J. ONLINE 335 (2011), http://yalelawjournal.org/2011/12/20/rai.html.