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Patent Puzzles after the Supreme Court’s 2024 Administrative Law Cases: Stare Decisis, Rulemaking, and Discretion

Patent

Guest post by Arti K. Rai, Elvin R. Latty Distinguished Professor of Law and Co-Director, Center for Innovation Policy at Duke Law

In a flurry of recent decisions, the Supreme Court has continued its skepticism of administrative agencies.  Although these decisions may not have as significant an impact in patent law as in other areas, they do pose interesting puzzles with respect to stare decisis as well as agency rulemaking and discretion that will provide many litigation opportunities going forward.

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How Chestek Impacts USPTO’s Rulemaking Authority and the Push to Restore

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by Dennis Crouch

The Federal Circuit's recent decision in Chestek v. Vidal opened the door to extensive USPTO rulemaking that entirely avoids the notice and comment process required by the Administrative Procedure Act (APA). In re Chestek PLLC, 92 F.4th 1105 (Fed. Cir. 2024).  Chestek has now filed her petition for writ of certiorari to the U.S. Supreme Court asking: Whether the PTO is exempt from notice-and-comment requirements when exercising its rulemaking power under 35 U.S.C. § 2(b)(2).

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