Decoupling Patent Law

Patent law is applied in a variety of settings, including the Patent Office in determining an applicant’s initial entitlement to a patent, the courts in enforcing patent rights, and the Patent Office in reconsidering previously issued patents. These settings differ significantly in their functions, timing, structure, procedures, and decision makers. Yet, identical patent law rules are generally applied in identical ways in each. This norm of coupled patent law is presumed, with little theoretical justification. Yet, problems arising from the norm of coupled patent law may underlie current disagreement among Congress, the Supreme Court, the Federal Circuit, and commentators about the optimal design of patent law. Simply put, it may be impossible to develop a single, optimal set of rules to be applied uniformly in the very different settings of the patent system. Rather, for patent law to be optimal in practice, rather than just in theory, it may need to be tailored to reflect the different contexts and decision makers of the patent system. Decoupling patent law to apply different rules, standards, tests, presumptions, etc. in the different settings of the patent system, like patent acquisition in the Patent Office and patent enforcement in the courts, may be warranted. This Article makes the normative case for decoupled patent as tool of patent law design and provides an initial framework for implementing it, addressing statutory and practical concerns.