Chevron won’t affect the USPTO – no impact

IMPLICATIONS FOR IP LAW IN THE UNITED STATES The reversal of Chevron deference will impact US IP law, and it is likely to have the most impact at the ITC. While the reversal will also affect how courts review interpretations of statutes made by IP administrative bodies like the US Patent and Trademark Office (USPTO) and the US Copyright Office, we expect a lesser impact for those agencies. THE ITC The ITC hears IP cases pursuant to 19 USC § 1337, which authorizes the ITC to investigate alleged wrongdoing that involves importing an article into the United States that violates patent, trademark, copyright, trade secret, and other unfair competition laws. Drawing on this authority, the ITC has become a popular forum for IP cases given the speed of the cases[1] and the remedies that are difficult to receive in district court: injunctive relief and cease-and-desist orders. The ITC’s authority has not gone unchallenged. For example, in Suprema v. ITC,[2] the US Court of Appeals for the Federal Circuit considered whether the ITC could ban the importation of articles that do not infringe as imported but would later infringe post-importation. The Federal Circuit concluded that the statutory language was ambiguous, and relying on Chevron, determined that the ITC’s broader interpretation of Section 337 to allow for jurisdiction of post-importation infringement was reasonable.[3] On June 24, in anticipation of the Supreme Court’s Loper Bright and Relentless decision, Google petitioned the Federal Circuit for an en banc rehearing,[4] asking the Federal Circuit to reconsider “[w]hether the International Trade Commission’s authority under 19 USC § 1337(a)(1)(B)(i) is limited to articles that infringe a patent as imported, or instead extends to cases where infringement can occur only when additional features are added or additional steps are performed after importation.”[5] The Federal Circuit will have to consider this question and any future challenges to the ITC’s interpretation of its authority. This could lead to further limitations on what cases can be brought before and succeed at the ITC. THE USPTO Unlike with the ITC, neither patent law in general nor practice before the USPTO is likely to be affected significantly by Chevron being overruled. As the Federal Circuit has held, the USPTO was never granted substantive rulemaking authority by Congress and, as a consequence, the agency’s interpretations of the substantive patent law have never received deference[6] and are reviewed de novo on appeal.[7] In contrast, overruling Chevron may impact how the Federal Circuit treats the USPTO’s interpretations of procedural statutes. Previously, the USPTO has enjoyed deference to its interpretations where the Federal Circuit has found ambiguity in the procedural statute,[8] although the Federal Circuit frequently holds there is no statutory ambiguity.[9] The overruling of Chevron deference is not expected to impact the USPTO’s creation of procedural rules that Congress has authorized the USPTO to promulgate in areas where statutes are silent. We may, however, see an increase in challenges at the Federal Circuit on how the USPTO implements its procedural requirements, but we anticipate those challenges to be specific and narrow.