What Would Eliminating Chevron Deference mean for Patent Law

PenguinMemeBy Dennis Crouch

In the landmark case of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. the US Supreme Court laid-out the process for determining whether to grant deference to a federal agency’s interpretation of ‘its’ statute.[1] ‘Chevron deference’ as it is often termed provides agencies with power to interpret the statutory law – and that interpretation will be given deference if ever appealed to a court of law.  In some areas, the agencies are in full control. However, patent law is different. The patent courts (i.e., the Federal Circuit) has repeatedly held that the USPTO was never granted substantive rulemaking authority by Congress and, as a consequence, the agency’s interpretations of the substantive patent law are not subject to deference. Instead, USPTO interpretations of substantive patent law are reviewed de novo on appeal.  The AIA substantially increased the USPTO’s procedural authority with creation of the AIA Trials division and fee setting authority.  Those interpretations of PTO procedural statutes are given deference by the Federal Circuit.

Some academics have argued that deference should apply to substantive patent law rulemaking, such as interpretation of the “on sale” doctrine.[2]  However, the law may soon head the opposite direction.

Now pending before the Senate is the “Separation of Powers Restoration Act of 2016” sponsored by Senators Hatch, Grassley, and Lee.[3] The House version passed in July 2016 on party lines with 100+ Republican co-sponsors. In January, party lines will have shifted to allow a renewed version of the Bill to be passed in both the House and the Senate and signed into law by President Trump.

The proposal is about as simple as can be. The one-page bill simply adds the words “de novo” into the Administrative Procedure Act Section 706 – the section that provides for the scope of review of an agency action.  Under the new law, any APA appeal will require de novo review of “all relevant questions of law, including the interpretation of constitutional and statutory provisions and rules.”

This change would breathe new life into Challenges of the AIA Trial system, USITC decisions, as well as a large host of USPTO procedural examination rules and fees.


= = = = =

[1] 467 U.S. 837 (1984).

[2] See, Stuart Minor Benjamin & Arti K. Rai, Administrative Power in the Era of Patent Stare Decisis, 65 Duke L.J. 1563 (2016) building on their prior work at Stuart Minor Benjamin & Arti K. Rai, Who’s Afraid of the APA? What the Patent System Can Learn from Administrative Law, 95 Geo. L.J. 269 (2007); Christopher J. Walker, Chevron Deference and Patent Exceptionalism, 65 Duke L.J. 2016; and Melissa F. Wasserman, The Changing Guard of Patent Law: Chevron Deference for the PTO, 54 William & Mary L.Rev. 1959 (2013).

[3] H.R.4768.

38 thoughts on “What Would Eliminating Chevron Deference mean for Patent Law

  1. 8

    The foundation of deference is administrative expertise. Scalia, Antonin. “Judicial deference to administrative interpretations of law.” Duke Law Journal 1989.3 (1989): 511-521. link to scholarship.law.duke.edu

    But, since the days of the Roman Empire, an agency will always act in its own defense. Once created, agencies will relentlessly act to expand their authority. The only counterpoise are coequal branches. Chevron removes the judiciary. The legislative acts only under necessity, when things get so bad that the electorate intervenes. But at times, the whole system crashes before that happens.

    Recent experience has shown that agencies have been accelerating their expansion of power acquisition at an ever growing rate. It is no longer even credible that this acquisition of power is justifiable under the theory of agency expertise.

    The statue is refreshing, necessary, and a pertinent reaction to recent history.

    Achates must be reversed.

  2. 6

    An important caveat in the patent context is that most patent cases reach the Federal Circuit via direct appeal authorized by statute rather than the collateral attack offered by the APA. What this means is that the APA is not directly controlling in those cases and, as such, a change in the APA might not impact deference granted in ordinary patent appeals.

    1. 5.2

      anony, next step, and let me predict it here now, the movers and shakers will demand that validity over published prior art be removed from the courts and that infringement actions be stayed pending PTO action.

      1. 5.2.1


        If indeed public rights, why not remove ALL patent items from the courts?

        What is there to stop such a move?

  3. 4

    Here is one case where this anti-Chevron statute might make a small difference if passed quickly enough:
    In re Aqua (Fed. Cir. 2016) – the pending en banc review decision on the AIA statute and the PTO rules on establishing validity of claims substituted [amended] in an instituted IPR.

    1. 4.1

      If Chevron deference is not given in the case you mention, what do you think the “fall-back” position will be?

  4. 3

    The elimination of the Chevron doctrine for Constitutional issues is another example of pathetic political pandering to the paranoid – giving credence to a non-existent issue by prohibiting something that never existed. The Chevron doctrine only applied to agency interpretations of their own statutes, and was by no means conclusive even for that.

    1. 3.1

      The provision already requires review of agency decisions regarding “relevant questions of law, interpret constitutional and statutory provisions.” The amendment would add the requirement that the review be “de novo.” In that scenario, it would be odd (and create some interpretation questions) if the statute parsed out only statutes to be reviewed de novo.

      1. 3.1.1

        ? Dennis, are you suggesting that is intended for a D.C. or any other court to ignore a prior Sup. Ct. constitutional or statutory interpretation decision as no longer a precedent?


          C. I’m not exactly sure what you are suggesting here. As I suspect you know, whether or not to apply Chevron deference is itself a statutory interpretation question, and the Supreme Court is clear that no deference will be given when Congress expressly states “no deference.” The proposed amendment here is that “no deference” statement broadly stated to apply to all APA cases.

  5. 2

    Senate R’s have kept 100 judgeships open, refusing the sitting President’s nominees for many months. Trump will fill those now, as well as the political appointee layer throughout the agencies. This bill’s reason for being has vanished, and it will go nowhere.

    1. 2.1

      Some R’s and D’s are not Statist, and would prefer to pass Separation of Powers on principle regardless of which party happens to be in “power”.

      After all, some democrats have NOT taken to the street to “protest” with crime and violence democracy itself (which has put their ilk in power many times) simply because they happened to lose this time, the reason is that they believe in the democratic process (for good or ill) on principle.

      Likewise, not all the R’s and D’s are corrupt would be tyrants no matter how many of their constituency (or leaders?) could be categorized that way.


          Interesting to watch… but likely the outcome will be dissatisfying to see…

          Would free individuals ever endure such uncertainty, fear, and distaste over the mere choice of the State’s elected officials in a truly free country, in which the power of the State over the individual is strictly confined to its proper limits through its constitution and checks and balances, and in which the Rule of Law and not the Rule of Men was paramount? Not likely.

          I would submit that the fear and uncertainty is driven by an understanding that government no longer protects individual rights, i.e. no longer protects each of us from each other but has morphed into a weapon, a bludgeon wielded by interest groups from time to time rule and beat other interest groups into submission. The worry then becomes who’s side is the State on… this time around? Who can I bludgeon and conversely how can I avoid being bludgeoned… this time around?

          It’s time the people who vote in the R’s and D’s see that it’s not any others societal motives or preferences that are the threat, it is the excessive power wielded by the State which is the threat.

          It really is time for “Gun Control” … or “Arms Reduction”… just not the normal sense…


            Seems like Jews , blacks, women, muslims gays and Latinos are going to get a bludgeoning under the republicans. Who was Hillary going to bludgeon? Remind everyone.


              Will we have to endure this non-patent law whining for every topic that comes up?

              The buckets are overflowing.

                1. Not sure why you think your whining has anything to do with patent law or why a simple observation of that fact brings you to chuckles…

                  It’s quite obvious that your buckets are overflowing.

                2. It’s not the observation that made me laugh. It’s the hyprocrite who made the observation.



              “Seems like Jews , blacks, women, muslims gays and Latinos are going to get a bludgeoning under the republicans.”

              MM> Muh victims! Muh victims! Muh victims!


                Keep it up, 6! It’s your chance to be proud!

                Step into the spotlight and tell us more. I especially like your interesting theories about women but I’m sure you’ve got some great ones about Jews and blacks, too. Share them, please!

                1. “Keep it up, 6! It’s your chance to be proud!

                  Step into the spotlight and tell us more. I especially like your interesting theories about women but I’m sure you’ve got some great ones about Jews and blacks, too. Share them, please!”

                  MM> “Muh victims, Muh victims, Muh victims! Muh victims infinite, I didn’t learn anything from this election! Muh victims! Muh isms! I can’t stop talking about muh victims and muh isms”

                  You’re hogging all the limelight with your “victims” and your isms. You’ll have to step aside for anyone to be able to step into it. But we both know you’re never going to do that.

    2. 2.3

      “Senate R’s …refusing the sitting President’s nominees”

      There are currently 44 of President Obama’s district court noms sitting at the Senate. And some of them have indeed been sitting overlong (12, 15, even a few around 20 months, even).

      OTOH, President Obama has already successfully appointed more judges to federal district court than did President Bush.

      Do I wish the Senate would get on the ball with the advice-n-consent thing? Sure. Some of the current DC judges have enormous dockets. And while not relevant to trial courts, I think the Senate should have considered Mr. Garland and given him his shot.

      But it’s not like President Obama hasn’t already done a great job in getting judges appointed.

Comments are closed.