The USPTO's Soft Power: Who Needs Chevron Deference?
19 Pages Posted: 11 Feb 2014 Last revised: 31 Dec 2014
Date Written: February 1, 2014
By many measures, the United States Patent and Trademark Office (USPTO) is no bureaucratic bantam. The USPTO compares well in size and budget to the Securities and Exchange Commission (SEC), which is commonly recognized to be a “powerful” and “respected” federal agency. In fiscal year 2012, the USPTO employed over 11,000 people, including nearly 8,000 patent examiners, and had about $2.3 billion in program costs. In that same fiscal year, the SEC had less than four-thousand full-time employees and program costs of about $1.2 billion, a little over half those of the USPTO. In terms of employment and budgetary measures, one might say that the 2012 USPTO was about double the agency the SEC was.
Nonetheless, in terms of recognized power to speak on substantive questions of law, the USPTO can seem an institutional mite. Like many other administrative agencies, the SEC can receive high-level Chevron deference when the courts review its interpretations of the statutes it administers. In contrast, courts view the USPTO as lacking any general grant of so-called “substantive rulemaking authority” and, thus, as generally not meriting high-level deference for its interpretations of substantive aspects of the Patent Act.
A number of commentators have criticized this distinctive aspect of U.S. patent law’s institutional structure. But for the most part, need we care that much about it? This paper argues that an agency like the USPTO can do much to shape substantive law even without access to Chevron deference.
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