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The Changing Guard of Patent Law: Chevron Deference for the PTO


Melissa F. Wasserman


University of Illinois College of Law

October 24, 2012

William & Mary Law Review, Vol. 54, 2013
Illinois Program in Law, Behavior and Social Science Research Paper No. LBSS14-06
Illinois Public Law Research Paper No. 13-25

Abstract:     
Whereas Congress has increasingly turned to administrative agencies to regulate complex technical areas, the patent system has remarkably remained an outlier. In the patent arena, the judiciary — not a federal agency — is perceived to be the most important expositor of substantive patent law standards. Yet, as the criticism toward the patent system has grown, so too have the challenges to this unusual power dynamic. The calls for institutional reform culminated in late 2011 with the enactment of the historic Leahy-Smith America Invents Act (AIA). Although scholars have recognized that the AIA bestows a glut of new powers upon the United States Patent and Trademark Office (PTO), this Article contends that commentators have failed to recognize the extent to which the AIA alters the fundamental power dynamics between the judiciary and the PTO. This Article contends that the AIA rejects over two hundred years of court dominance in patent policy by anointing the PTO the primary interpreter of the core patentability standards through its new formal adjudicatory authority.

Although the patent system has traditionally suffered from a lack of serious engagement with administrative law, applying administrative law principles to the AIA has tremendous implications for the roles of patent institutions and, as this Article argues, results in a normatively desirable outcome. The AIA, by making the PTO the primary expositor of its core provisions of the Patent Act, ushers the patent system into the modern administrative era — which has long recognized the deficiencies associated with judge-driven policy. Moreover, the incorporation of administrative law principles into the patent system has substantial implications for administrative law itself. As this Article attempts to reconcile the distinctive features of patent administration with existing administrative law jurisprudence, it provides insight into a prolonged circuit split on the proper approach to determining the triggering provisions for formal adjudication, as well as when a grant of formal adjudicatory authority carries with it the ability to speak with the force of law.

Number of Pages in PDF File: 62

Keywords: patent law, administrative law, PTO, Chevron deference, formal adjudication

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Date posted: October 25, 2012 ; Last revised: August 8, 2013

Suggested Citation

Wasserman, Melissa F., The Changing Guard of Patent Law: Chevron Deference for the PTO (October 24, 2012). William & Mary Law Review, Vol. 54, 2013; Illinois Program in Law, Behavior and Social Science Research Paper No. LBSS14-06; Illinois Public Law Research Paper No. 13-25. Available at SSRN: http://ssrn.com/abstract=2166560

Contact Information

Melissa F. Wasserman (Contact Author)
University of Illinois College of Law ( email )
504 E. Pennsylvania Avenue
Champaign, IL 61820
United States
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