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INTRODUCTION 977 I. BACKGROUND 981 A. Increasing Time Allocations 982 B. The Rationally Ignorant Patent Office 987 II. SAVINGS ASSOCIATED WITH DECREASING THE ISSUANCE OF INVALID 989 PATENTS. A. Litigation [...], There is widespread belief that the Patent Office issues too many "bad" patents that impose significant harms on society. At first glance, the solution to the patent quality crisis seems straightforward: give patent examiners more time to review applications so that they grant patents only to those inventions that deserve them. Yet the answer to the harms of invalid patents may not be that easy. It is possible that the Patent Office is, as Mark Lemley famously wrote, "rationally ignorant." In Rational Ignorance at the Patent Office, Lemley argued that because so few patents are economically significant, it makes sense to rely on litigation to make detailed validity determinations in those rare cases rather than increase the expenses associated with conducting a more thorough review of all patent applications. He supported his thesis with a cost-benefit calculation in which he concluded that the costs of giving examiners more time outweigh the benefits of doing so. Given the import of the "rational ignorance" concept to the debate on how best to address bad patents, the time is ripe to revisit this discussion. This Article seeks to conduct a similar cost-benefit analysis to the one that Lemley attempted nearly fifteen years ago. In doing so, we employ new and rich sources of data along with sophisticated empirical techniques to form novel, empirically driven estimates of the relationships that Lemley was forced to assume in his own analysis given the dearth of empirical evidence at the time. Armed with these new estimates, this Article demonstrates that the savings in future litigation and prosecution expenses associated with giving examiners additional time per application more than outweigh the costs of increasing examiner time allocations. Thus, we conclude the opposite of Lemley: society would be better off investing more resources in the Patent Office to improve patent quality than relying on ex post litigation to weed out invalid patents. Given its current level of resources, the Patent Office is not being "rationally ignorant" but, instead, irrationally ignorant.

In 2014, the Patent and Trademark Office ("Trademark Office" or "Agency") made national headlines when it cancelled the Washington Redskins' trademark registration. The Washington Redskins, a National Football League team, [...]

B. Force-of-Law Prerequisite This Section examines whether the congressional conferral of formal adjudicatory powers to the PTO is sufficient to infer that the Agency has the ability to speak with [...]

E. Robustness / Specification Checks There is a potential concern that selection effects due to changes in the filing behavior among small and large entities following the 1991 fee reform [...]

While modern society has embraced specialization, the federal judiciary continues to prize the generalist jurist. This disconnect is at the core of the growing debate on the optimal level of specialization in the judiciary. To date, this discussion has largely revolved around the creation of specialized courts. Opinion specialization, however, provides an alternative, underappreciated method to infuse specialization into the judiciary. In contrast to specialized courts, opinion specialization is understudied and undertheorized. This Article makes two contributions to the literature. First, this Article theorizes whether opinion specialization is a desirable practice. It argues that the practice's costs and benefits are a function of whether the court itself is specialized. More specifically, this Article contends that while opinion specialization may be normatively desirable for generalist courts, it is likely not for specialized tribunals. Perhaps most concerning, this Article argues that opinion specialization in specialized courts increases the likelihood legal doctrine will reflect the idiosyncratic preferences of a few judges. Second, given the concerns associated with opinion specialization in specialized tribunals, this Article empirically tests the extent to which specialization occurs in these specialized courts. We approach this question by examining the process of opinion assignment in the U.S. Court of Appeals for the Federal Circuit, which is best known for its near-exclusive jurisdiction over patent appeals. Utilizing a novel, author-constructed database of Federal Circuit opinions issued between 2004 and 2018, we find that opinion specialization is a robust part of the Federal Circuit's practice. This Article demonstrates that opinion specialization may have led to several highly criticized legal developments at the Federal Circuit, exploring mechanisms in which opinion specialization may be diminished, and examining the implications of our findings for the broader judiciary. [ABSTRACT FROM AUTHOR]

In this Section of the Appendix, we discuss a bounded analysis of the personnel costs to the Patent Office ("the Agency") that result from doubling patent examiner time allocations. In particular, we adopt different multipliers to account for the full cost of a patent examiner to the Patent Office in excess of their base salary. As discussed in Section II.A, we assume a 2.04 factor of an employee's base salary to account for fringe benefits, employer taxes and insurance, and allotments for office space, rent, equipment, replacement/turnover cost, managerial support, etc. Below, we repeat the calculation in Table 2 of the Article but utilize a multiplier factor of 2.5 (Table A1) to provide a high estimate and a multiplier factor of 1.5 (Table A2) to provide a low estimate of the increase in payroll expenses associated with doubling examiner time allocations. [ABSTRACT FROM AUTHOR]

The calculation of patent damages lies at the epicenter of patent policy, yet it remains one of the most contentious issues in all of intellectual property law. The dominant legal framework equates a reasonable royalty, the most prevalent patent damage award, to a hypothetical negotiation between the parties at the time infringement began. Commentators and courts generally agree that existing comparable patent licenses, which represent arm 's-length transaction between two unrelated private parties that places a monetary value on the patent, are highly probative in determining a reasonable royalty. The lack of publicly available licensing data, however, limits the ability of courts to identity appropriate comparable licenses. In this paper, we argue that there is a large untapped trove of information on existing patent licensing agreements, many of which are likely more probative to reasonable royalty calculation than currently existing licensing data offered by patent damage experts. This novel source of data is tax-related "transfer prices. ". [ABSTRACT FROM AUTHOR]

Deference asymmetries are unevaluated phenomena in administrative law. These asymmetries occur when an administrative agency's decision that overly favors its regulated entities is either less likely to be subjected to judicial reexamination, or if it is subjected to judicial challenge, will be afforded a more deferential standard of review than a decision that overly disfavors its regulated entities. Because decisions that are afforded a more deferential standard are more likely to be upheld, deference asymmetries could potentially function as a one-way ratchet, pushing the development of regulatory law in the pro-regulated-entity direction. In addition to providing a theoretical basis for the bias development of regulatory law that may arise from deference asymmetries, this Article identifies the formal and informal structures in the administrative state that give rise to the skewed application of deference regimes. In doing so, this Article demonstrates that deference asymmetries are not isolated to a few areas of regulation. Rather, a surprising number of agencies that regulate fields ranging from the environment, to patent law, to disability benefits face asymmetric deference with respect to their decision making. Finally, this Article explores the implications of these asymmetries for administrative law. [ABSTRACT FROM AUTHOR]