Eisenberg and Lamoreaux on Separation of Powers or Division of Labor? Patent Interference Disputes, the Grand Narrative, and the History of the Administrative State, 1790-1940

Rebecca Eisenberg, University of Michigan Law School, and Naomi R. Lamoreaux, Yale University; National Bureau of Economic Research; University of Michigan Law School, have published Separation of Powers or Division of Labor? Patent Interference Disputes, the Grand Narrative, and the History of the Administrative State, 1790-1940. Here is the abstract. NB: There are 2 versions of this paper

We use the history of the Patent Office to challenge the Grand Narrative of separation of powers that the current Supreme Court is using to invalidate congressional designs for administrative agencies. Focusing on the adjudication of patent interference disputes—cases in which two or more inventors applied for patents for essentially the same technology—we find that the division of labor between the Patent Office and the courts shifted repeatedly and dramatically over the century and a half preceding the Administrative Procedure Act. Rather than worries about separation of powers, the main drivers of change were (1) the Patent Office’s efforts to curb inventors’ exploitation of interference procedures to delay the award of patents to rivals and (2) the need to manage the workload that interference appeals imposed on the overburdened Patent Office and courts. Innovations in Patent Office procedures led to dramatic improvements in the efficiency of its frontline adjudication of interferences, but officials found it much more difficult to prevent losing parties from abusing appeals opportunistically. At the behest of the Patent Office, Congress repeatedly revised the appeals process for interferences, trying out direct review by ad hoc arbitration panels, individual judges, and variously constituted courts. It even eliminated direct appeals of interference decisions from 1870 until 1893, while continuing to provide for appeals from rejections of patent applications (where opportunistic delays posed less serious problems). Although interference parties sometimes raised legal challenges to these review structures, they reached a dead end in the Supreme Court, which throughout the nineteenth century deferred to Congress’s authority to design the system. Finally, in 1939, after a century of trial and error, the Patent Office convinced Congress to eliminate all internal appeals in interference cases within the Patent Office, to authorize the Patent Office to issue patents based on its frontline adjudications of priority, and to shift review of interference decisions entirely to the courts. Again, this change did not apply to rejections of patent applications, which were still reviewed internally before they could be appealed to the courts. Both the great variety of appeal structures enacted over the years and the repeated divergence in the treatment of appeals of interferences and rejections support our emphasis on the primary role that pragmatic concerns played in the evolving division of labor between the Patent Office and the courts. This history reveals flexible adaptation over time rather than conformity to a standard model of separation of powers traceable to the framers.

Download the article from SSRN at the link.

Forthcoming from Princeton University Press: Carla Hesse, The People's Justice: Revolutionary Law and the Founding of the French Republic (June 2026)

Forthcoming from Princeton University Press: Carla Hesse, The People’s Justice: Revolutionary Law and the Founding of the French Republic (June, 2026). Here from the publisher's website is a description of the book's contents.

In The People’s Justice, Carla Hesse offers a sweeping reappraisal of political violence in the French Revolution. From Charles Dickens to Hannah Arendt, the Revolution of 1789–1799 in France has been depicted as the bloodiest of the eighteenth-century democratic revolutions. Through extensive new archival research, Hesse shows that, to the contrary, what set the French Revolution apart was neither the scale nor the intensity of its violence but rather the ubiquity of its political tribunals and the use of novel forms of criminal law and procedure as a means of adjudicating political conflict. More than 5,000 political trials were prosecuted by the Revolutionary Tribunal in Paris alone, and, with an acquittal rate of more than 50 percent, these were neither perfunctory nor foregone in their outcomes. They had a repressive function, to be sure, but more importantly, they played a critical role in founding a republic in France and in shaping its social and political norms. Through jury deliberation, public witnessing, and media coverage, these political trials legitimated a republic and the revolutionary struggle that brought it into being. They were animated less by class warfare, factional hatreds, or utopian ideology than by a patriotic, albeit tragic, effort to hold fellow citizens accountable. Over the course of the last two centuries, France, of course, has successfully established itself as a constitutional regime, but this constitutional tradition is still rooted in and haunted by its revolutionary past. Since 1793, the French Republic has, to some extent or another, kept itself alive by keeping itself perpetually on trial.