Deference, Defiance, and Useful Arts

My objective in this Article is to demonstrate that the PTO\u27s patentability determinations are questions of policy and, therefore, the Federal Circuit\u27s standards of review, as applied to these determinations, are unsound. With respect to the Commissioner\u27s statutory interpretations, I intend to demonstrate that the court\u27s “traditional factors of statutory construction,” which are used in such a way as to avoid deferring to the PTO, result in irrational decisions, or at the very least, an alternative theory of interpretation no more convincing than that put forth by the PTO. My principle assertion, grounded in both doctrine and policy, is that the Federal Circuit\u27s judicial review of the BPAI\u27s patentability determinations and the Commissioner\u27s statutory interpretations is paternalistic and results in a less than optimal balance of interpretive power. What I ultimately advocate, therefore, is a “paradigm shift” with respect to the way deference is viewed by the Federal Circuit