Bracewell’s Kit Crumbley talked with IAM about the rulemaking authority of the US Patent and Trademark Office (USPTO) following the overturning of the 40-year old Chevron doctrine by the US Supreme Court.
Crumbley, who served as the USPTO’s former lead administrative patent judge for the Patent Trial and Appeal Board (PTAB), believes that the USPTO will be less impacted than other agencies by the Supreme Court’s decision.
“The Federal Circuit declined long ago to give Chevron deference to any of the agency’s interpretations of substantive patent law, such as the requirements for nonobviousness, and the court has signaled unwillingness to defer to decisions of the PTAB or the Director’s Precedential Opinion Panel,” said Crumbley. “On procedural issues, such as determining the proper guidelines for IPRs [Inter Partes Review], the Federal Circuit has more often than not found that the AIA [America Invents Act] is not ambiguous, so there was no need to apply Chevron deference.”
Crumbley also noted that the Chevron ruling leaves the so-called Skidmore defense, “under which court can uphold agency regulation if the agency provides persuasive reasoning why its interpretation of the law is correct,” undisturbed.
While there may be more challenges to USPTO rules, Crumbley doesn’t expect many rules will be struck down.
