Fwd: Tomorrow: Loper Bright Impact on USPTO Decisions & Regulation CLE, @1:00 P.M. E.D.T.
David Boundy
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I am pleased to announce that I will be speaking in an upcoming Strafford live video webinar, "USPTO and ITC Rulemaking and Adjudicatory Decisions After the Demise of Chevron Deference" scheduled for Tuesday, August 27, 1:00pm-2:30pm EDT. Loper Bright Enterprises v. Raimondo overruled the Chevron doctrine. For 40 years, Chevron specified a two-step framework for federal courts in reviewing challenges to agency regulations. Under Chevron, courts would first ask whether Congress had "directly spoken to the precise question at issue" in the statute. If not, the courts were required to defer to the agency's interpretation as long as it was reasonable. Loper Bright has now moved the task of interpreting statutory provisions back into the hands of federal courts. Where past challenges to agency rules faced a standard of review that was highly deferential to the agency, future challenges will benefit from a much more favorable standard. The Loper Bright decision will impact practice at the USPTO and ITC, and how courts, particularly the Federal Circuit, examine USPTO and ITC statutory interpretations. For example, in anticipation of the decision, Google petitioned the Federal Circuit for reconsideration of Suprema v. Int'l Trade Comm'n , in which the court had deferred to the ITC's interpretation relating to "articles that infringe." Our panel will analyze likely effects of Loper Bright on the USPTO's unusual rulemaking practices, including PTAB and TTAB precedential decisions and binding provisions in the MPEP and TMEP. What rules are no longer enforceable, and how others are likely to change? For both the USPTO and ITC, what new opportunities permit challenges to agency rules and decisions, both during intra-agency proceedings and in court? We will review these and other important considerations: After Loper Bright, what agency rules are dead letters? When are intra-agency and judicial challenge of regulations or sub-regulatory guidance more viable or attractive? When not? Why?How does Loper Bright affect best practices for patent and trademark prosecution, post-grant practice, and ITC trials? What should we watch for in notices of proposed rulemaking? What rules are especially vulnerable to challenge? Under what circumstances can the PTAB continue to treat its precedential decisions as binding? When can the USPTO treat the MPEP and similar sub-regulatory guidance as binding? What are the interactions between Loper Bright and other recent Supreme Court decisions that open avenues of relief otherwise barred? Who benefits? Who loses? Is it time for a portfolio review, and what should you tell your clients? Congress will be busy re-legislating statutes for high-visibility and high-impact agencies and areas of law such as EPA, OSHA, and the antitrust agencies. What about agencies that won't get onto the legislative calendar for a decade? How will non-specialist courts interpret statutes that govern highly technical issues? After our presentations, we will engage in a live question and answer session with participants so we can answer your questions about these important issues directly. I hope you'll join us. For more information or to register > Or call 1-800-926-7926 Sincerely, David Boundy, Attorney
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David Boundy | Partner | Potomac Law Group, PLLC
P.O. Box 590638, Newton, MA 02459
Tel (646) 472-9737 | Fax: (202) 318-7707
dbo...@potomaclaw.com | www.potomaclaw.com