Acting Like an Administrative Agency: The Federal Circuit En Banc‪.‬

I. INTRODUCTION When Congress created the Federal Circuit in 1982, (1) it intended to create a court of appeals. (2) Little did it know that it also was creating a quasi-administrative agency that would engage in substantive rulemaking and set policy in a manner substantially similar to administrative agencies. (3) In this Article, I examine the Federal Circuit's practices when it orders a case to be heard en banc and illustrate how these practices cause the Federal Circuit to look like an administrative agency engaging in substantive rulemaking. The number and breadth of questions the Federal Circuit agrees to hear en banc and the means by which it hears them go beyond the limited role of a court to decide the case before it.4 Instead of exercising restraint and addressing only what it must, the Federal Circuit raises wide-ranging questions and makes broad pronouncements of law that set or change patent policy. (5)