How Eliminating Agency Deference Might Affect PTAB And ITC

More than 30 years ago, in Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., the U.S. Supreme Court held that, with regard to judicial review of an agency's construction of a statute which it administers, if Congress has not directly spoken to the precise question at issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. And, 20 years ago, in Auer v. Robbins, the Supreme Court extended this "Chevron deference" principle to an agency's interpretation of its own rules and regulatory schemes. These two decisions — Chevron and Auer — have had widespread implications in administrative law, including with respect to deference afforded the U.S. Patent and Trademark Office in creating and interpreting its own rules. Indeed, just last year, the Supreme Court upheld the USPTO's application of the broadest reasonable interpretation standard in inter partes review as a "reasonable exercise" of authority