51:2 The Inequities of Inequitable Conduct: A Case Study of Judicial Control of Administrative Process


The current doctrine of inequitable conduct creates a highly unusual relationship between the courts and the executive agency charged with administering the patent system. In other fields of administrative law, courts do not attempt to regulate the conduct of administrative proceedings through their inherent judicial powers. Such judicial regulation of administrative process is, however, precisely what the inequitable conduct doctrine fosters. This Article shows that the modern scope of inequitable conduct doctrine traces back not to the trilogy of Supreme Court decisions typically cited as the doctrine’s foundation but instead to lower court precedent decided decades later during an era in which lower courts generally assumed that judges could and should exercise nonstatutory powers to supervise administrative process. That approach to judicial supervision of agencies was, however, firmly rejected by the Supreme Court’s 1978 Vermont Yankee decision. The current scope of inequitable conduct doctrine is a case study in the approach rejected by the Supreme Court, and that case study demonstrates that many of the problems observed with inequitable conduct doctrine are precisely those predicted by the Supreme Court in Vermont Yankee. This Article concludes that inequitable conduct doctrine should be modified to reconcile its scope with modern principles of administrative law.