As part of a terrific Iowa Law Review Administering Patent Law Symposium, I have spent some time thinking about the constitutional tensions in agency adjudication after the Supreme Court’s decisions last Term in Lucia and Oil States. I’ve just posted a draft of that essay to SSRN.

One thing that somewhat surprised me in working through this constitutional puzzle is that the agency adjudications before the Patent Trial and Appeal Board (PTAB) that were at issue in Oil States seem to have several of the features that Chief Justice Roberts flagged in Stern v. Marshall as necessary to be a “true adjunct” of an Article III court. (These true-adjunct features, Stern held, are required under Crowell v. Benson for agency adjudication of private rights.) In particular, the agency head does not have final substantive decision-making authority, and the Federal Circuit currently accords no Chevron deference to PTAB interpretations of substantive patent law. To be sure, I don’t think PTAB adjudication has all the requirements necessary to be a true Article III adjunct; but it seems more like the Article III adjunct model than the rest of the modern agency adjudication landscape.

At any rate, here’s the abstract:

Last Term the Supreme Court decided two cases—Lucia v. SEC and Oil States Energy Services v. Greene’s Energy Group—that illustrate the potential constitutional tensions in modern agency adjudication: the importance of political accountability, yet the dangers of political control. As part of the Iowa Law Review’s Administering Patent Law Symposium, this Essay examines these constitutional tensions and assesses two ways the Supreme Court (or Congress) could attempt to resolve them—i.e., by turning to Article III adjudication and by transforming agency adjudicators into “true adjuncts” of Article III courts. The Essay concludes by revisiting the patent adjudication proceedings at issue in Oil States to explore how these constitutional tensions and potential solutions may play out at the U.S. Patent and Trademark Office.

Comments are definitely welcome, especially as the editing process is just beginning. The current draft of the essay is available here.