Federal Circuit v. USPTO: Chevron Deference?

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Some commentators would say there is an extraordinary face-off currently playing out between the Federal Circuit and the USPTO on the issue of deference. This was perhaps inevitable after the AIA established the PTAB seven years ago as a venue with broad power to adjudge the validity of issued patents, giving to the USPTO, an administrative agency, rights that previously had been exercised largely by Article lll Courts. 

Facebook v. Windy City Innovations is the first case at the Federal Circuit centering on deference to the USPTO since the Supreme Court’s recent decision in Kisor v. Wilkie. Even before Kisor, appellants at the Federal Circuit and the Supreme Court had already succeeded in arguing against Chevron deference in such cases as SAS v. Iancu. In the current showdown, the Federal Circuit has invited the USPTO to file a brief saying “what, if any, deference” the Court should give to Precedential Opinion Panel decisions. The USPTO’s brief is due on Sept. 17th, just in time for it to be discussed on the webinar.   
Our panel, which includes a former chief judge of the Federal Circuit, a former solicitor of the USPTO who is a professor of law, and the litigator who successfully argued SAS at the Supreme Court, will predict how these issues will play out and explore the implications for your practice.

Our panel, which includes a former chief judge of the Federal Circuit, a former solicitor of the USPTO who is a professor of law, and the litigator who successfully argued SAS at the Supreme Court, will predict how these issues will play out and explore the implications for your practice.

Speakers:

Gregory Castanias, Jones Day
Todd Walters, Buchanan Ingersoll & Rooney PC
Prof. John Whealan, GW Law 

Gregory Castanias

Jones Day

Gregory Castanias heads the Federal Circuit practice at Jones Day. He represented SAS Institute at the Supreme Court, in a 2018 case that transformed the way that patents are litigated at the PTAB, and represented Myriad there in a Section 101 case. He has argued 70+ times at the Federal Circuit and has won numerous appeals from the PTAB. 

Prof. John Whealan

The George Washington University Law School

Prof. John Whealan is Dean for Intellectual Property Law Studies at George Washington University. He served as Solicitor of the USPTO from 2001 to 2008. During his tenure, he argued 30 cases before the Federal Circuit. Previously, he was a staff attorney and litigator for the U.S. International Trade Commission, and clerked for Judge Rader at the Federal Circuit. 

Todd Walters

Buchanan Ingersoll & Rooney PC

Todd Walters is the Chair of the firm’s Patent Office Litigation practice and Co-Chair of the Intellectual Property section. He is a current Vice-Chair of the Post-Grant Practice Committee of the Intellectual Property Owners, a past Chair of the Patent Trial and Appeal Board (PTAB) Trial Committee of the American Intellectual Property Law Association (AIPLA) and a past Chair of the USPTO Post Grant and Inter Partes Practice Committee of the American Bar Association-Intellectual Property Law (ABA-IPL) section. He has previously served as a member of the firm’s Board of Directors, and Executive Management team and Co-leader of the IP Section. He has also served as Vice-chair of the Interference Committee of the Intellectual Property Owners (IPO) association for approximately 10 years.

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Federal Circuit v. USPTO: Chevron Deference?
09/19/2019 at 2:00 PM (EDT)   |  60 minutes
09/19/2019 at 2:00 PM (EDT)   |  60 minutes
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