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The Legal Authority Behind Obama’s Patent Push

Lawmakers write the laws, and executives enforce them. But sometimes the roles get jumbled.

Take, for example, the Obamaadministration’s plan on Tuesday to lift the veil on patent ownership. As part of the plan, the president said the U.S. Patent and Trademark Office is drafting a rule that would require patent applicants to disclose who actually owns them. Congress never passed a law forcing that kind of disclosure.

Where does the patent office, an executive branch agency, get the authority to do that?

Defining the limits of executive rule-making authority is a constant source of tension between the federal branches. Some laws come with precise instructions on how they should be implemented. Others give the executive more leeway.

In the case of the patent office, Congress has authorized the agency to issue rules “govern[ing] the conduct of proceedings in the Office,” notes Arti K. Rai, an intellectual property scholar at Duke University School of Law who served as a senior policy adviser to the PTO, in a comment letter to the office.

Even within the narrower boundaries set by federal judges, the patent office “retains significant authority to issue rules, so long as the rules make no attempt to change the standards by which an application is evaluated,” she stated.

What the Obama administration is proposing falls within the scope, argues Ms. Rai, who thinks that the extra burden on applicants would be “relatively minimal.”

Critics of the proposal, though, have suggested that the new disclosure rule may be an overreach.

“[The] Patent and Trademark Office should investigate further whether it has the authority to require the patent ownership information before it moves ahead with the proposal,” stated Herbert C. Wamsley, executive director of the Intellectual Property Owners Association, at a policy panel hosted by the patent office in January.

At the forum, Mr. Wamsley said his trade group was concerned that such disclosure could undermine “legitimate business interests in protecting the confidential nature of ownership and licensing information,” according to a transcript of the event.