When Congress created the Federal Circuit in 1982, it thought it was creating a court of appeals. Little did it know that it was also creating a quasi-administrative agency that would engage in substantive rulemaking and set policy in a manner substantially similar to administrative agencies. 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 very much 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 goes beyond the limited role of a court – to decide the case before it. Instead of exercising restraint and addressing only what it must, the Federal Circuit raises wide-ranging questions and makes broad pronouncements of law that sets or changes patent policy. This role has traditionally been delegated to administrative agencies that must comply with the Administrative Procedure Act, particularly the notice and comment provisions. Despite being an appellate court and not being subject to the notice and comment requirements, the Federal Circuit seems to comply with these requirements when it orders cases to be heard en banc. And although there are strong objections as to why the en banc Federal Circuit should refrain from acting like an administrative agency by engaging in substantive rulemaking and policy setting, I argue that the Federal Circuit is probably in the best position to do so, although other governmental bodies can or should play a larger role in shaping patent policy.

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Missouri Law Review

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