44 Pages Posted: 26 Nov 2008 Last revised: 14 May 2009
Date Written: November 24, 2008
The Court of Appeals for the Federal Circuit's jurisprudence of whether Chevron deference is due to the United States Patent and Trademark Office (PTO) has been remarked upon as inconsistent and "conflicting". The recent Federal Circuit case of Cooper Technologies Co. v. Dudas seems to reconcile precedent and create a bright-line rule: that Chevron deference is proper for "interpretative" rules dealing with the proceedings of the PTO, but not for "substantive" rules. While this opinion seems to address the previous inconsistencies within the Federal Circuit, it relies on some interpretations of administrative law doctrine that, at the least, reveal a continuing circuit split on some important issues, but which also may misinterpret some of the foundations on which the doctrine rests.
In Cooper, the Federal Circuit limited Chevron deference to the PTO in two different ways, both of which relate to the holding that the PTO has no "substantive rulemaking power." First, rules that are due deference must be related to the proceedings of the PTO. Second, the rule must be "interpretative." It did this even though: (a) the rule in Cooper was promulgated with the same procedures required for substantive rules; and (b) the PTO never asked for Chevron deference to be applied in the case. This holding seems to ignore that interpretative rules as a class are not entitled to Chevron deference. Many circuits, in fact, hold that interpretative rules are never entitled to Chevron deference. In addition, this holding creates a conjunctive test of the PTO's authority out of formerly disjunctive requirements.
This note argues that the goal of Cooper was to establish a seemingly clear rule that carves out very little authority for the PTO. And, in a move reminiscent of Marbury v. Madison, it found for the PTO in the specific case, but set up a binding framework that would cause the PTO to lose in future cases where deference under Chevron was sought.
Keywords: chevron, cooper, tafas, aristocrat, administrative
Suggested Citation: Suggested Citation
Pekarek Krohn, David R., Cooper Technologies Co. V. Dudas: Laying the Foundation for Minimal Deference (November 24, 2008). Northwestern University Law Review, Vol. 104, 2010. Available at SSRN: https://ssrn.com/abstract=1291802