Perm do both---avoids the deficit---patents

Article II of the Constitution grants the legislative branch the power to create law."o0 Despite Congress's monopoly on law making, scholars have theorized that the other branches of government can engage in a dialogic relationship with Congress."' Inter-branch dialogue permits the nonlegislative branches to express criticism or skepticism over Congress's decisions, spur Congress to action in areas in which a particular branch has an acute interest, and help shape the power of the nonlegislative branches in light of Congress's singular ability to define that role. Congress's dialogic relationship with the courts is somewhat different with regard to patent law. Because of the existence of a specialized appellate court in the area, Congress can defer some policy-like decisions to the Federal Circuit. As Part II of this Article demonstrated, during passage of the ALA, Congress crafted reform legislation to remedy problems in the patent system.so4 Those legislative proposals were often intended to spark a dialogue between Congress and the courts. Of course, Congress and the Federal Circuit did not engage in discussion over every issue in the patent reform proposals. Many other elements of the legislation were passed without Federal Circuit response, such as changes to the joinder rules in patent cases.06 Tellingly, however, many of the changes that Congress did enact were directed at aspects of the patent system over which the Federal Circuit has little or no control. For instance, Congress changed the U.S. patent system from a first-to-invent system to a first-to-file system, a change that could only have been made by statute. Similarly, the creation of post-grant administrative procedures at the USPTO is not something that the Federal Circuit could have created without congressional action. Why is Congress's dialogue with the judicial branch unique when it comes to patent law? The answer lies largely with the Federal Circuit's uniqueness among the Federal judiciary. Congress created the Federal Circuit with an eye towards enlisting the court in some policymaking functions. It is not surprising therefore, that Congress views the court as an institutional policymaker, despite the court's reluctance to overtly assume that role for itself. Nor is it surprising that Congress is comfortable playing an initial catalytic role in policymaking. In fact, allowing the Federal Circuit to shape doctrinal patent reform can free Congress to focus on administrative, procedural, or other types of reform measures."For example, during the ALA's legislative process, the Federal Circuit's doctrinal changes to thorny issues such as damages allowed Congress to pass reform measures that substantially altered the administrative proceedings of the patent system." Furthermore, Congress is more likely to play a catalytic role in patent reform because the Federal Circuit is particularly cognizant of legislative proposals on patent law. Unlike the work of generalist courts, the work of the Federal Circuit is significantly impacted by legislative changes in a single area of law. Judges on generalist appellate courts will only rarely be impacted by any particular legislative change, and are therefore only mildly affected by any particular piece of legislation. However, over one-third of every Federal Circuit judge's caseload is made up of patent cases, and those cases tend to take up an outsized portion of the judges' time and attention.1 It is thus predictable that the Federal Circuit monitors the legislative machinations on patent reform. The court likely will continue to monitor future developments with equal interest and respond to suggestions made by Congress.