The PTO is perhaps the best institutional candidate for a peer competitor. Indeed, the Supreme Court itself seems to have recently encouraged the PTO to serve as a check on the court by providing another viewpoint in cases on petitions for certiorari. In the last six terms (2000–2005), the Supreme Court has called for the views of the Solicitor General (CVSG) on fifteen certiorari petitions filed by private parties in Federal Circuit patent cases. These cases accounted for over 16% (fifteen out of ninety-one) of all CVSG orders entered by the Supreme Court during the period even though patent cases occupied less than 3% of the Court’s docket. The response to such a CVSG order invariably is a brief signed by the Solicitor General (SG) and the PTO (and sometimes by other components of the government); and where the SG and the PTO have recommended granting certiorari, the Court has uniformly followed the recommendation. Thus, by issuing a comparatively large number of CVSG orders in patent cases, the Supreme Court appears to be trying to use conflicts between the Federal Circuit and the PTO as a substitute for conflicts among federal circuit courts, which is the normal criteria used by the Court in ruling on certiorari petitions.
Jurisdictional competition is crucial to the efficient working of our legal system. Duffy and Nard argue that Congress undermined jurisdictional competition in patent law when it centralized all patent decision-making in the Federal Circuit. The passage above suggests that the Supreme Court clearly understands the benefits of jurisdictional competition, but Nard and Duffy argue (and I think I agree with them) that asking for briefs from the Patent Office is a poor substitute from the kind of robust inter-circuit competition that would result from the decentralization of patent jurisdiction.