The PTAB Is Not an Article III Court, Part 2: Aqua Products v. Matal As a Case Study in Chevron Deference and Administrative Law

American Bar Ass'n, Landslide, Vol. 10 Nr. 5, pp. 44-51, 64 (May/Jun 2018)

12 Pages Posted: 23 Oct 2018

See all articles by David Boundy

David Boundy

Cambridge Technology Law LLC

Andrew B. Freistein

Wenderoth, Lind & Ponack, LLP

Date Written: May 1, 2018

Abstract

Aqua Products, Inc. v. Matal illustrates a principle raised in two recent articles in Landslide-not every patent case is a patent law case. Aqua's briefs presented the case as statutory interpretation of the Patent Act. The Federal Circuit en bane ruled against Aqua's position. However, the court threw Aqua a remarkable lifeline: despite near-complete silence in Aqua's briefs on administrative law principles, seven judges in three opinions sua sponte decided the case on those grounds. Only because of that lifeline did the court decide in Aqua's favor-the U.S. Patent and Trademark Office's (USPTO's) attempt to give rulemaking authority to the Patent Trial and Appeal Board (PTAB) and the PTAB 's attempt to make law by mechanisms outside the Administrative Procedure Act (APA) were invalid.

Aqua Products is an example of a case that is really tough on patent law grounds but a clear winner on administrative law grounds. This article looks at issues presented in Aqua Products and explains various administrative law principles pertinent to PTAB proceedings, along with opportunities for parties to present the law to the PTAB and to courts to guide better decision-making. The article also suggests several reforms that might be adopted by the PTAB to promote procedural regularity.

Keywords: patent law, administrative law, Chevron deference, Auer deference, arbitrary and capricious agency action

Suggested Citation

Boundy, David and Freistein, Andrew B., The PTAB Is Not an Article III Court, Part 2: Aqua Products v. Matal As a Case Study in Chevron Deference and Administrative Law (May 1, 2018). American Bar Ass'n, Landslide, Vol. 10 Nr. 5, pp. 44-51, 64 (May/Jun 2018). Available at SSRN: https://ssrn.com/abstract=3258047

David Boundy (Contact Author)

Cambridge Technology Law LLC ( email )

PO Box 590638
Newton, MA 02459
United States
646 472 9737 (Phone)

HOME PAGE: http://www.CambridgeTechLaw.com

Andrew B. Freistein

Wenderoth, Lind & Ponack, LLP ( email )

Washington, DC

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