Does  de novo empowerment   of courts to review agency actions weaken administrations all the way up to the presidency?

via Separation of Powers Restoration Act | Patently-O

Dennis Crouch says that a proposed amendment to 5 U.S.C. 706 could take “substantial power… away from the presidency,” but I’m not sure, at least not with respect to patents. There’s two noteworthy statements:

1. “…decide De Novo…”
2. “…and rules made by agencies.”

The first, most critical language of the change is “reviewing court… shall decide de novo all relevant questions…”

Currently, if there is a challenge to a ruling of the patent office, you can take it up with either the federal district court OR you can challenge the ruling within the uspto’s own patent trials and appeals board (PTAB), an administrative court. “Reviewing court,” above, means courts of the judiciary, not reviewing councils of agencies, which are within the administrative branch. The interpretation that the amendment weakens the presidency is pendent upon the presumption that giving de novo review of agency actions to the courts takes away from the firmness of the president’s grasp all the way down through an agency, through its actions, and through its appeals of its actions, because de novo means that the court being asked to review doesn’t have to begin its analysis with how a preceding administrative council or court already handled it.

As a practical matter, since the patent office is a weird and specific  little world, I generally think that using the patent office’s board to review its own actions, particularly as to examiners’ rulings, makes a lot of sense. PTAB board members will include people well-versed in their own little world. In general, I would think that if you choose to go to a judicial court, you are asking for review that is somehow different from what the agency itself would like to apply. You’re asking for the government to weigh-in on your case in a way that is a bit arms’-length from the agency which took an action. So, it’s like making a bid of no-confidence in the actions of the organization that begrieved you in your interaction with it.

A skittish court, modestly conceding its own limitations, would be reasonable to defer to a preceding review by the agency, and, if it disagrees with the ruling of the preceding review, having made that initial deference educates the court so that it can see the application of the agency’s rules and logic, to see if everything is being handled in an internally consistent way. This change seems to seek to bring all actions to a judicial court in a way that encourages ignoring whether the matter had been attempted in the agency first.

So, it’s basically an attempt to hide from the record of the controversy anything that might have been informed by the rulings of the lower court. However, I really don’t think that’s likely to happen in the world of patents. Patents are weird. If I was a finder of fact, downstream of the patent office’s PTAB board on some matter, I don’t care whether I am allowed to rule de-novo. I am going to be reading that judgment, if I can. Otherwise, I have no idea as to whether I am messing-up a whole line of agency adjudication to advance its policies.

Even if there was some counterculture benefit to an anomalous ruling contrary to how a slew of others are progressively being held, it would be hugely unlikely to do anything other than provide a brief aberration. I’m not about to be able to set-forth some jurisprudence that steers the ship of any one agency’s administration… As a reviewing board, and one only electably empowered, the administration is going to be free to just continue to hold however it wants. I mean, the best thing that could be expected to happen here is that there would be pockets of reliably juxtaposed adjudication in certain districts with respect to an entire administration… it’s madness. More likely, though, reviewing judges are going to have their senses informed by what agencies are deciding, whether or not they are bound to hold according to merely procedural / consistency review of the agencies’ holdings. Allowing for courts to not have to do so could only have a differing effect when there is some personal or political bias that would somehow be useful to not have to limit to how an agency would apply its own rules, where those rules couldn’t otherwise be challenged on some other basis…

It seems like a fuchachta thing to even add to the law.

But… it weakens the presidency? If we’re talking about patents? Just how taken with Alice v. CLS Bank do you think Trump is going to be? Do we have any reason to think that he has been outraged that invention claims have to recite additional elements that amount to something significantly more than a law of nature, natural phenomenon, or abstract idea? Oh, how about the administration’s forcefulness on application of examiner guidelines?

I mean, imagine being a finder of fact in a position where it might be handy to not have to defer to the judgment of preceding decisions, in order to opportunistically benefit some interest, but where the question at hand is in the context of this sort of thing?:

Click to access 2014_eligibility_qrs.pdf

https://view.officeapps.live.com/op/view.aspx?src=https://www.uspto.gov/sites/default/files/documents/ieg-qrs-dec2016.pptx

Click to access ieg-may-2016-sme_crt_dec.pdf

Really? how much room can you really expect to lay-down an ongoing jurisprudence akin to “I know obscenity when I see it,” in the context of patents, without informing oneself by the above graphics and instructions, and thereby being “colored,” by the logic embedded therein, such that any diversion away from the agency’s objectives is only going to be a superficial difference?

from where I sit, politicians are just being weird.