What’s So Special About Patent Law?

The widespread belief that patent law is special has shaped the development of patent law into one of the most specialized areas of the law today. The belief in patent law’s exceptionalism manifests itself as two related presumptions with respect to the judiciary: first, that generalist judges who do not have patent law expertise cannot effectively decide patent cases, and second, that judges can develop necessary expertise through repeated experience with patent cases. Congress showed that it acquiesced to both views when it created the Federal Circuit and the Patent Pilot Program. In recent years, however, the Supreme Court has reminded us that the judiciary’s difficulty with patent cases is not the law, but is instead that patent cases often involve difficult subject matter, which sometimes requires technical or scientific expertise. While Congress’s early attempts to deal with these difficulties focused on courts with legal―rather than technical―expertise, the Supreme Court’s recent pronouncements suggest that they should have been doing the reverse. Moreover, to the extent that it is the underlying technology that makes patent cases difficult, that commends the use of an administrative, rather than a judicial, solution. One potentially viable answer to the judiciary’s problem with patent law has already been partly implemented in the form of the recently created Patent Trial and Appeal Board. This Article proposes expansion of that solution by making that new entity the exclusive forum for deciding issues of patent validity.