Patent Law as Public Law

Historically, patent litigation has been viewed and treated primarily as private law litigation, as opposed to public law litigation. This paradigm has begun to shift, however, as various stakeholders have come to acknowledge the profound impact that the patent system – and particularly invalid patents – have on the public at large. Yet, in order for a public law regime to succeed, there must be a host of enforcement mechanisms available, including the opportunity for privately-initiated litigation. Public interest organizations have played a prominent role in the enforcement of certain public rights, such as free speech, equal protection, and environmental laws. While such organizations showed little interest in the patent system in the past, change is afoot. In recent years, public interest organizations like the ACLU and Public Patent Foundation have initiated large-scale litigations pursuant to the Declaratory Judgment Act challenging the validity of patents relating to human genes and genetically-modified seed. Like many plaintiffs before them, though, these organizations have discovered that the Federal Circuit’s patent declaratory judgment jurisprudence makes it very difficult, if not impossible, to challenge potentially invalid patents. This Article challenges the conventional wisdom that patent litigation is private law litigation, and argues that patent litigation is more properly treated as public law litigation. The Article aims to show that the primary normative goal of the patent system, as contemplated by the constitution itself, is to benefit the public by “promot[ing] the Progress of Science and useful Arts.” The Federal Circuit nevertheless has viewed patent declaratory judgment actions through the lens of a private law model, and consequently fashioned doctrine that improperly elevates the rights of private parties above those of the public. This Article contends that the Federal Circuit’s approach to standing and personal jurisdiction, in particular, has created significant procedural obstacles that often lead to the early dismissal of patent declaratory judgment actions. Because the merits of these suits are left unaddressed, invalid patents remain in force and the public is harmed. This Article proposes that this flawed doctrinal architecture will be fixed once the Federal Circuit recognizes and treats patent validity challenges as public law litigation, as many other participants in the patent system have already done