For many, the demise of Chevron—the doctrine by which agencies enjoy deference in interpreting ambiguous statutes—has long been coming. While Chevron's demise, and the resulting resurgence of Skidmore, is likely to lead to numerous challenges to previous agency decisions, its effect on intellectual property, namely patent law may be limited. Yet certain decisions by both the U.S. Patent and Trademark Office (USPTO), and its Patent Trial and Appeals Board (PTAB), and the U.S. International Trade Commission (ITC) have been afforded Chevron deference, and thus may be subject to post-Chevron challenges. This article examines three such examples: the ITC's interpretation of 19 U.S.C. Section 1337 (Section 337) in Suprema v. International Trade Commission; Director Kathi Vidal's guidance on discretionary denials at the PTAB; and the USPTO's proposed rule change for terminal disclaimers.

Chevron's Demise and Skidmore's Resurgence

In Loper Bright Enterprises v. Raimondo, the U.S. Supreme Court overruled the longstanding Chevron deference standard, whereby courts defer to "permissible" agency interpretations of a statute if the statute is silent or ambiguous and Congress did not address the issue. Instead, courts must exercise "independent judgment" to decide whether an agency has acted within their statutory authority, rather than defer to an agency's interpretation of an ambiguous statute. Importantly, Loper did not blanketly overrule agency deference all together. Rather, it marked the resurgence of Skidmore.