Throughout the centuries, patent law has developed and adapted to changing conditions. In particular, the growing importance of patents in innovation and economic performance has driven changes and advancement in patent law. As the number of patents filed has grown year after year, patent litigation has increased proportionately and placed strains on the judiciary. Preservation of judicial resources has necessitated an increasing reliance on administrative courts to help keep pace with the burgeoning caseload. At the same time however, the increase in patent litigation and the increasing reliance on administrative courts in supplanting the role of the judiciary has had problematic consequences.
In the modern litigation climate, litigants who are found liable for infringement of a valid patent in a full trial before an Article III court are routinely attacking that patent post-litigation through reexamination proceedings at the United States Patent and Trademark Office. Though this arguably presents significant constitutional concerns and promotes economically inefficient gamesmanship, the Federal Circuit has continuously reaffirmed this practice and the Supreme Court has declined to intervene. To remedy this situation, this Note argues that Congress should amend the patent system to avoid concurrent reexamination and litigation proceedings.
Reexamining Reexamination: Preventing a Second Bite at the Apple in Patent Validity Disputes,
Nw. J. Tech. & Intell. Prop.