Arti K. Rai (Duke University School of Law) has posted Growing Pains in the Administrative State: The Patent Office's Troubled Quest for Managerial Control (University of Pennsylvania Law Review, Vol. 157, 2009) on SSRN. Here is the abstract:
In the last ten years, the workload of the Patent and Trademark Office ("PTO") has increased dramatically. Complaints about the PTO's ability to manage its workload have increased in tandem. Interestingly, although Congress has explicitly given the PTO rulemaking authority over the processing of patent applications, and withheld from it authority over "substantive" patent law, the PTO has arguably enjoyed more success in influencing substantive law than in executing direct efforts to manage its workload. This Article explores the multiple, mutually reinforcing reasons for this anomaly. It argues that although there are good reasons to be frustrated with the PTO's past performance, the anomaly should not persist. To the contrary, incremental reform that gave the new PTO administration greater control over its procedures and its budgetary outlook would move us a long way toward a more efficient system of patent examination.