Experts Predict More Litigation Against USPTO Rules. But Will It Succeed?

The recent U.S. Supreme Court decision overturning the Chevron doctrine marks a significant shift in how federal agencies like the U.S. Patent and Trademark Office (USPTO) operate. Under Chevron, courts deferred to agencies’ reasonable interpretations of ambiguous laws, but now, judges must independently determine a law’s best meaning. This change will likely lead to increased litigation against USPTO rule-making, creating a more unpredictable regulatory environment.

Sterne Kessler Director Will Milliken commented that the PTO’s proposed rule concerning terminal disclaimer practice “has generated some controversy and may well be challenged if and when it is put into place. So, Loper does change the landscape of that potential dispute in a significant way.”