Document Type


Publication Date


Publication Information

74 Journal of the Patent and Trademark Office Society 406 (1992)


This article attempts to provide a basis upon which to preserve the Federal Circuit's current lawmaking primacy. Given the large body of preexisting literature on Chevron, USA, Inc v. Natural Resources Defense Council, it does not address whether Chevron allocates power between agencies and the courts optimally. Rather, the article examines how the PTO's statutory interpretations should be reviewed under Chevron. In Section I, the article places the examination in context by describing the Chevron decision and its general implications. Section II of the article examines how Chevron should be applied specifically in the context of reviewing statutory interpretations of the PTO. The article observes that the Federal Circuit has so far avoided deferring to the PTO by emphasizing Congress' intent as a limitation on the PTO's lawmaking power. Under Chevron, however, Congress' intent governs only where Congress has expressed itself clearly on the precise question at issue. The article argues that the PTO is outside the class of Federal agencies to whose statutory interpretations the judiciary owes deference. The PTO performs few of the traditional functions of Federal agencies. It is, in fact, structurally isolated from so much of the patent system that the assumptions of agency expertise responsible for Chevron are inapplicable. There is also evidence that Congress has affirmatively decided to give lawmaking power in the patent field to the courts and not the PTO. As a result, the article concludes, the courts need not defer to the PTO's statutory interpretations even in those situations where the statutory language is ambiguous.