The Duke Law Journal’s Forty-Sixth Annual Administrative Law Symposium addresses the timely and important topic of patent exceptionalism. Administrative law exceptionalism—the misperception that a particular regulatory field is so different from the rest of the regulatory state that general administrative law principles do not apply—is by no means unique to patent law. Scholars, attorneys, and agency officials in various regulatory fields ranging from immigration to tax have sought, contrary to the Supreme Court’s general guidance, “to carve out an approach to administrative review good for [the regulatory field’s] law only.” This Essay focuses on one of the main debates from the Symposium: whether courts should apply Chevron deference to interpretations of substantive patent law advanced by the U.S. Patent and Trademark Office (PTO). Part I frames the debate about whether Chevron deference should apply, contrasting the positions taken by Stuart Benjamin and Arti Rai on the one hand, and John Golden on the other. After agreeing with Professors Benjamin and Rai that certain PTO interpretations of substantive patent law are probably eligible for Chevron deference, Part II outlines how a stronger case could be made for why it is worth the PTO’s time and energy to seek Chevron deference from the Supreme Court. Among other reasons, the PTO and its U.S. Department of Justice lawyers should request such deference to weaken the Federal Circuit’s control over substantive patent law and reverse an era of patent stare decisis. The Essay concludes by urging patent law scholars to play a more active role in urging courts to abandon patent exceptionalism.
Christopher J. Walker, Chevron Deference and Patent Exceptionalism, Duke Law Journal Online 149-163 (2016)