The balance of power between the administrative state and the federal courts as guardians of the U.S. innovation system is in significant transition. Amid growing dissatisfaction with the expense and opportunity costs of patent litigation and the perceived strategic advantages that patent owners enjoy in the judicial process, the political branches have placed considerable new authority in the United States Patent and Trademark Office (“USPTO”) directly calculated to supplant the primacy of courts in resolving disputes over patent rights.
Amid this shifting balance of power, courts can no longer afford to ignore, assume, or improvise a pervasively important administrative power that the USPTO exercises regularly and capably: technology classification. It is surprising that the problem has persisted for so long in the first place, as technological classification is foundational to the law and policy of the patent system. Patent exceptionalism in administrative law explains some (but not all) of the historical judicial disregard for classification issues, and in any case, the explanation does not justify the error.