USPTO interpretations will be challenged post Chevron

Intellectual Property US Patent and Trademark Office (USPTO) The USPTO is the agency that issues all patents in the United States and administers post-grant review proceedings; therefore, it is an important agency for any life sciences company looking to protect its intellectual property. Under a prior ruling in the Federal Circuit, it was established that the USPTO’s interpretations of substantive patent law were not subject to deference because the agency was never granted substantive rulemaking authority by Congress. Instead, USPTO interpretations of substantive patent law have been reviewed de novo on appeal. Therefore, Loper Bright will not impact how substantive patent law is interpreted at the USPTO. Nor will the decision affect cases where the Federal Circuit holds that there is no statutory ambiguity, which has frequently been the case. However, Loper Bright will likely impact how the Federal Circuit treats the USPTO’s interpretations of its own ambiguous procedural statutes, as the USPTO previously enjoyed deference in those instances. There may, accordingly, be an increase in challenges at the Federal Circuit with respect to how the USPTO implements its procedural requirements, including while administering inter partes review.