As statutory schemes go, the patent statute has been relatively stable from 1952 to the present. In contrast to copyright law, where Congress has taken a close—indeed at times intense—interest in the details of the statutory scheme, legislative intervention into the patent statute, when it has occurred, has been more limited and narrower in scope. For many reasons, however, patent law has been disequilibrating over time, and calls for patent reform have been increasing in intensity. One of the many factors contributing to this disequilibration in recent years has been the ongoing emergence of the U.S. Patent and Trademark Office (PTO) as a more robust institutional player actively seeking to influence patent policy. The more prominent role played by the PTO is both a cause and an effect of dissatisfaction with the state of patent law.

In order to better understand some of the forces behind the moves toward patent reform, we should examine not just who is demanding legal change, but which institutions are able and willing to supply legal rules and norms. Since 1952, Congress has left much of the market for supply-side influence in patent law to the federal courts and, to a lesser degree, to the PTO. In 1982, Congress consolidated appellate jurisdiction over patent cases in one court, the U.S. Court of Appeals for the Federal Circuit. Since then, lacking institutional competition from other courts, the Federal Circuit has strengthened patent law. In the process, the court has made this a more attractive area for institutions to wield legal and policy influence.