Procedural Matters

In Loper Bright Enterprises v. Raimondo, the Supreme Court held that “courts may not defer to an agency interpretation of the law simply because a statute is ambiguous.” However, the decision carved out prior cases that relied on the Chevron framework stating that “the holdings of those cases that specific agency actions are lawful . . . are still subject subject to statutory stare decisis.” A challenger must provide a “special justification” to overrule Chevron-era cases.

With the death of Chevron, the “Skidmore ¹⁾ Deference Test” is now back. This rule states that a court is not compelled to follow an agency's interpretation of a statute but would determine the amount of deference to give the agency depending on “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.

How will this impact the patent system?

• The ITC's opinions and interpretations of Section 337 will no longer be entitled to Chevron deference. Therefore, new statutory challenges against induced infringement of products that do not infringe at the time of importation and method claims will increase at the ITC.
  • For example, in Suprema, Inc. v. Int'l trade Comm'n ²⁾, the Federal Circuit upheld under Chevron the ITC's interpretation that Section 337 includes articles that do not infringe at the time of importation, but which are used thereafter to directly infringe at the inducement of the seller. It is unclear whether the “special justification” to overcome stare decisis of past Chevron decisions will protect this doctrine going forward.
• The PTAB Consolidated Trial Practice Guide (Nov. 2019), PTAB Precedential Opinion Panel (“POP”) decisions and Informative Decisions, and Director Memorandums are not entitled to Chevron deference.

• Detailed analysis - worth a read! (Also here)
• Full coverage of the decision

In Chestnut Hill Sound Inc., v. Apple Inc. Chestnut Hill has invoked Equal Protection and Due Process clauses of the Constitution in its petition to the Supreme Court for writ of certiorari to block one-line summary affirmances altogether or at least mandate parity for patent owner and petitioner appellants. The petition argues:

”[t]he Federal Circuit is writing reasoned opinions for losing Petitioner-Appellants at a significantly higher rate than it writes reasoned opinions for losing Patent Owner-Appllants. Specifically, a losing Patent Owner Appellant is more than three times as likely to receive a Rule 36 summary affirmation than a losing Petitioner-Appellant. This is . . . to the detriment of the Patent Owner-Appellants, and it simply seems unfair.“

Update (11/19/19): In a related matter, Straight Path IP Group LLC v. Apple Inc. et al., the Supreme Court denied ³⁾ SPIP Litigation Group's petition to find that its Due Process rights were infringed by the Federal Circuit's tendancy to issue single-line orders under Rule 36. In this case, the Fed. Cir. summarily affirmed Judge Alsup's 2017 decision that Apple and Cisco did not infringe SPIP's patents.

• News summary (paywall)