Since its inception in the Progressive Era, the modern administrative state has functioned in tandem with the three intellectual property doctrines enforced by the federal government—patent, copyright, and trademark law. Although administrative law and these intellectual property doctrines have shared a common provenance—defined, promulgated, and enforced through federal institutions, statutes, and case law—administrative lawyers did not discuss intellectual property, and intellectual property lawyers similarly did not discuss administrative law. Throughout the twentieth century, administrative law and intellectual property law seemed as if they were hermetically sealed off from each other in both theory and practice.

In recent years, the self-imposed segregation between these two legal regimes has finally broken down. In the 1990s, legal scholars began to explore the doctrinal and institutional relationships between patents and the administrative state, and some patent scholars have since called for a theoretical reframing of patent doctrine "through the lens of regulation." In 1999, the Supreme Court seemed to agree with this growing cadre of academic scholarship, concluding in Dickinson v. Zurko that the Administrative Procedure Act applies to the Federal Circuit's review of the regulations promulgated by the Patent and Trademark Office (PTO). In its March 2009 decision in Tafas v. Doll, the Federal Circuit took another step toward integrating patent law with the administrative state, applying Chevron deference to the PTO's procedural rulemaking. However, the fractured panel decision virtually guarantees further appellate litigation (both a petition for rehearing en banc and a certiorari petition to the Supreme Court). Regardless of the outcome in the appeals process, there will be substantial litigation on remand as well.