Part II of this Article describes the Federal Circuit's en banc practices since its creation in 1982, focusing on how the Federal Circuit compares to the other federal appellate courts in terms of the frequency of en banc decisions, how the Federal Circuit orders cases to be heard en banc, the number and scope of the questions presented for en banc consideration, and the use of amici curiae in the briefing stages of the case. Part III examines the Federal Circuit's en banc practices in light of how administrative agencies engage in substantive rulemaking under the APA and suggests that the Federal Circuit's en banc practices mimic those of administrative agencies. Part IV then takes a normative look at the en banc Federal Circuit by analyzing objections to its en banc practices. In response, Part IV evaluates alternatives to the Federal Circuit for directing patent policy and evaluates whether these alternative bodies are better suited than the Federal Circuit sitting en banc.
Acting Like an Administrative Agency: The Federal Circuit En Banc,
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Available at: https://scholarship.law.missouri.edu/mlr/vol76/iss3/7