HOW CONGRESS MADE THE USPTO INFALLIBLE AND HOW THAT AGENCY SEIZED EVEN MORE POWER BY ITS “RULE MAKING AUTHORITY”

HOW CONGRESS MADE THE USPTO INFALLIBLEThe Supreme Court of the United States is set to hear oral argument in Cuozzo Speed Technologies, LLC v. Lee on April 25, 2016. The landmark case is the first opportunity The Supreme Court will have to weigh in on the constitutionality of the non-appealable provisions of the America Invents Act and the USPTO’s use of the “Broadest Reasonable Interpretation” in administrative post-grant trial proceedings used for the sole purpose of invalidating patents. The case will likely have precedential implications for two major issues. The first, whether an Article I administrative decision to institute an administrative trial can be “non-reviewable” without violating the Due-Process clause of the Constitution. The second, whether an Article I administrative court and an Article III judicial court may permissibly use different methods of patent claim construction.

When Cuozzo Speed Technologies, LLC v. Lee was decided by The Court of Appeals for the Federal Circuit Judge Dyk held that the court lacked jurisdiction to review the USPTO’s decision to institute. Judge Dyk cited 35 U.S.C. § 314(d), explaining that the Court was prohibited from reviewing the decision to institute an IPR. Judge Dyk found additional support for the USPTO’s claim construction standard, citing 35 U.S.C. § 316(a)(2) which he believes gives authority to the USPTO to adopt standards and regulations.

The position of Judge Dyk was clear and the rule would have been easy to follow. So why did The Supreme Court grant review? It is a widely known fact that The Federal Circuit, the circuit from whom Cuozzo Speed Technologies appeals from, has the highest reversal rate of any judicial circuit in the United States. Equally as interesting is the belief, amongst many intellectual property attorneys, that The Federal Circuit is more competent than The Supreme Court in patent related matters.