How Fed. Circ. May Defer To PTAB In Facebook Case

Currently pending before the U.S. Court of Appeals for the Federal Circuit is Facebook Inc. v. Windy City Innovations LLC, a cross-appeal of six separate inter partes reviews filed against four patents directed to internet chat room technology.¹

Central to the appeal is the question of whether the Federal Circuit should provide deference under Chevron USA Inc. v. Natural Resources Defense Council Inc. to the Patent Trial and Appeal Board's precedential decisions. This question has been answered differently not only by the parties but by the amici curiae, which includes the U.S. Patent and Trademark Office.

The issues raised by the appeal present an opportunity for the Federal Circuit to provide some clarity on the appropriate level of deference to be afforded PTAB holdings and may even provide a chance for the U.S. Supreme Court to weigh in. Given that Justice Neil Gorsuch and Justice Brett Kavanaugh are two frequent critics of Chevron, the case has the potential