Working Without Chevron: The PTO as Prime Mover

44 Pages Posted: 14 Jun 2016

See all articles by John M. Golden

John M. Golden

University of Texas at Austin - School of Law

Date Written: 2016


Through a proliferation of post-issuance administrative proceedings, the U.S. Patent and Trademark Office (PTO) has become a major player in the fate of patents after their initial examination and grant. In combination with the PTO’s more traditional roles in initial examination and general guidance, new post-issuance proceedings enable the PTO to help steer the development of substantive patent law even without general provision of high-level Chevron deference for the agency’s interpretations of substantive aspects of the U.S. Patent Act. Contrary to some commentators’ suggestions, congressional authorization for new post-issuance proceedings does not appear to have included an implicit delegation of interpretive authority generally warranting Chevron deference on such matters. But the PTO can still accomplish much with lower-level deference and the advantages that its common “first mover” position provides.

Keywords: Chevron deference, Skidmore deference, PTO, PTAB, Mead, patent, Board of Immigration Appeals

Suggested Citation

Golden, John M., Working Without Chevron: The PTO as Prime Mover (2016). Duke Law Journal, Vol. 65, No. 8, 1657, U of Texas Law, Public Law Research Paper No. 655, Available at SSRN:

John M. Golden (Contact Author)

University of Texas at Austin - School of Law ( email )

School of Law
727 East Dean Keeton Street
Austin, TX 78705
United States
(512) 232-1469 (Phone)

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