Fed. Circ. Fracture On Deference Puts USPTO In Tough Spot

Law360, New York (October 13, 2017, 2:03 PM EDT) -- The en banc Federal Circuit's deeply divided decision last week on when U.S. Patent and Trademark Office interpretations of statutes are entitled to deference makes it hard for the office and litigants to know if current and future patent regulations will withstand appellate review, experts say.

The appeals court discarded USPTO rules putting the burden on patent owners to prove that claim amendments they propose in America Invents Act reviews are patentable, in a decision known as Aqua Products. The decision dove into the doctrine of Chevron deference, which holds that courts should defer to administrative agencies when they interpret ambiguous...

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