By Professor Timothy T. Hsieh, Associate Law Professor, Oklahoma City University School of Law
For the past five years, I have taught Legislation & Regulation at Oklahoma City University School of Law, a course situated at the intersection of administrative law, statutory interpretation, and legislative design. Each semester, my students and I return to a foundational question: when, if at all, should courts defer to agency views, and when must the judiciary exercise independent interpretive judgment?
Loper Bright and Administrative Law
When the Supreme Court issued Loper Bright Enterprises v. Raimondo last year—squarely rejecting Chevron and instructing courts to independently interpret statutes—it marked a watershed moment in administrative law. Yet nearly a year later, the Court has provided virtually no guidance on how Loper Bright should be applied. That silence leaves courts, practitioners, and those of us training future lawyers without real-world examples to illuminate this new interpretive landscape.
That is why I submitted an amicus brief in Lynk Labs, Inc. v. Samsung Co. Ltd., urging the Court to grant review. Although the case arises in the patent arena, it presents a far more universal question: whether lower courts may quietly sidestep Loper Bright by elevating agency policy preferences over statutory text.
In Lynk Labs, the Federal Circuit embraced a USPTO interpretation that expanded the scope of the statute, claiming to apply congressional language while in reality tracking agency policy rationales. In doing so, the court effectively resurrected Chevron-style deference under a different label. By allowing USPTO policy—not longstanding judicial meaning—to determine what counts as a “printed publication,” the court blurred the line between neutral interpretation and executive policymaking.
This interpretive sleight of hand does more than distort a technical patent term. It strikes at the core of Loper Bright’s constitutional promise. Loper Bright reaffirmed that courts—not agencies—must say what the law is. Yet the Federal Circuit’s reasoning demonstrates how deeply Chevron’s instincts remain embedded. Instead of grounding its analysis in text or settled precedent, the court echoed the USPTO’s argument that treating confidential, abandoned applications as “printed publications” promotes administrative efficiency, even though such applications have long been criticized as low-quality and unreliable prior art.
But efficiency is not a constitutional value. The Administrative Procedure Act and the separation of powers exist precisely to ensure that administrative expedience does not eclipse statutory limits. When courts adopt agency policy preferences as the lens through which statutes are read, administrative convenience becomes a substitute for judicial reasoning. This “deference by imitation,” as my brief explains, smuggles Chevron back in through subterfuge—deferring to what agencies say the law should be rather than independently determining what the law is. The danger here is structural, not semantic: once courts begin mirroring agency policy instead of statutory text, they abandon independent judgment.
If this pattern takes hold, judicial interpretation will increasingly become a by-product of agency policymaking rather than a constitutionally grounded exercise in statutory fidelity. Lynk Labs offers a vivid example. The Federal Circuit transformed a term with more than a century of settled meaning—“printed publication” as publicly accessible information—and stretched it to include materials that were secret at the relevant time. That move not only rewrites the statute but erodes the fair notice essential to the patent system.
The Court should take this opportunity to clarify Loper Bright’s reach. Loper Bright may have overruled Chevron, but Chevron will not disappear on its own. Without concrete judicial decisions showing how the new standard must operate, lower courts may revive the old regime in all but name. The Supreme Court can prevent that erosion by reaffirming that agency policy goals and administrative convenience cannot override statutory text.
This is an especially timely moment. Loper Bright has already sent tremors through regulatory regimes—from tax to environmental law to intellectual property—with observers anticipating a wave of challenges to agency actions. And in this accelerating era of AI, where regulators grapple with platforms, data, and automated systems, clearer statutes are urgently needed—and the judiciary must serve as a reliable interpretive compass.
In the midst of a broader recalibration of the administrative state, Lynk Labs gives the Court a vital chance to chart the contours of the post-Chevron world. Ultimately, moving beyond Chevron will require more than a single decision. It will require vigilance—case by case, opinion by opinion—to restore the judiciary’s duty to interpret statutes independently. The Constitution entrusts courts, not agencies, with that responsibility. The time has come for the Supreme Court to demonstrate what that commitment looks like in practice.
“Printed Publication”
The stakes of the “printed publication” question extend far beyond technical patent doctrine. For more than a century, courts have interpreted “printed publication” to require public accessibility before the critical date. That principle is foundational: it ensures that inventors can determine what prior art exists and evaluate whether their innovations are novel. By sweeping confidential, abandoned applications—documents that were never available to the public at the time of invention—into the category of “printed publications,” the Federal Circuit destabilized this long-settled framework. Such a reinterpretation transforms an objective, notice-based rule into one that depends entirely on what the USPTO later chooses to disclose.
This shift has profound effects on inventors and innovators. The patent system relies on predictability: inventors must be able to assess the universe of prior art before investing time, money, and resources. Treating nonpublic filings as “printed publications” turns the system into a minefield of invisible prior art—materials that inventors could not have found, accessed, or anticipated. Fair notice evaporates when secret agency files can retroactively invalidate patents. That result is not only illogical; it undercuts the basic purpose of the patent system, which depends on clarity to promote innovation.
Moreover, the Federal Circuit’s approach runs directly counter to the Supreme Court’s consistent preference for textual and precedential fidelity in patent law. In Helsinn v. Teva, Return Mail, SAS Institute, and Microsoft v. i4i, the Court repeatedly rejected attempts to smuggle policy preferences into statutory interpretation. Each case reaffirmed that Congress legislates against a backdrop of well-established judicial meanings. Here, Congress used the term “printed publication” with full awareness of its longstanding definition. Had Congress wanted to include confidential or abandoned filings—materials never exposed to the public—it could have amended the statute. It did not.
The Federal Circuit’s interpretation creates yet another problem: it gives the USPTO the ability to alter the prior-art landscape through internal practices rather than congressional action. Whether abandoned applications remain confidential, become public, or emerge years later now directly affects inventors’ rights—even though the agency’s decisions about publication timelines are administrative, not legislative. This is exactly the kind of executive aggrandizement that Loper Bright and the Administrative Procedure Act were designed to prevent. The meaning of a statute cannot fluctuate based on the internal workflow of the agency tasked with applying it.
Finally, the Federal Circuit’s reasoning threatens to expand agency authority beyond its proper bounds. The USPTO already plays multiple roles—examiner of applications, adjudicator of post-grant challenges, and policy generator through documents like the MPEP. Allowing the agency to influence the definition of “printed publication” based on its own procedural preferences collapses these roles further, concentrating interpretive power where it does not belong. Without judicial intervention, the term “printed publication” risks becoming a moving target shaped by agency convenience rather than statutory command.
As a scholar, teacher, and former practitioner, I filed this brief hoping the Court will offer the clear guidance the legal community needs in the wake of Loper Bright. Law develops through real-world application, not abstract pronouncements—and our students, our courts, and our constitutional framework deserve nothing less.
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Timothy T. Hsieh, Esq.
Associate Professor of Law
Oklahoma City University School of Law