In response to a request for supplemental briefing from the Federal Circuit in Facebook v. Windy City Innovations, the U.S. Patent and Trademark Office (USPTO) recently argued that its precedential panel opinions interpreting the America Invents Act (AIA) are entitled to Chevron deference, under which (essentially) courts must defer to an agency interpretation of a statute so long as the interpretation is reasonable. To the extent that this bid for Chevron deference is limited to procedural administrative Patent Trial and Appeal Board (PTAB) matters such as the one at issue in that case, (an interpretation of 35 U.S.C. § 315(c) which relates to the USPTO Director’s ability to join a party in inter partes review [IPR]), it is arguably defensible. But to the extent that the agency claims (or plans to claim) that its precedential PTAB opinions are owed deference on issues of substantive patent law, it is likely incorrect.
Examining the USPTO’s Bid for Adjudicatory Chevron Deference
No Comments
Business
- Other Barks & Bites, Friday, December 6: Lawmakers Concerned with Copyright Restatement, USPTO Pushed to Keep SEP Injunction Policy, Qualcomm Pushes Back on Koh at Ninth Circuit
- The USPTO Wants a Rehearing in Arthrex: Now is the Time to Put the PTAB on Trial
- One Inventor’s Unsolicited Congressional Testimony Following Arthrex
- How to Prepare and Prosecute Patents in Light of the USPTO’s Post-Alice Focus on Eligibility
- Other Barks & Bites for Friday, November 29: China Pledges ‘Social Satisfaction’ on IP Protection and Nominates Candidate to Head WIPO
Recent Posts
- Other Barks & Bites, Friday, December 6: Lawmakers Concerned with Copyright Restatement, USPTO Pushed to Keep SEP Injunction Policy, Qualcomm Pushes Back on Koh at Ninth Circuit
- Ericsson Wins, But CAFC Dodges Whether Offers Were FRAND
- Another Front in China’s Economic War: Senate IP Subcommittee Seeks to Solve USPTO’s Fraudulent Chinese Trademarks Problem
- The USPTO Wants a Rehearing in Arthrex: Now is the Time to Put the PTAB on Trial
- One Inventor’s Unsolicited Congressional Testimony Following Arthrex