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 setting. This norm of coupled
patent law is presumed, with little theoretical justification. 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. Thus, for patent law to be optimal in
practice, rather than just in theory, it may need to be tailored for 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 patents as a tool of patent law design and
provides an initial framework for implementing it, addressing statutory and
practical concerns.