In a report published by IAM, Unified’s Chief Patent Counsel Jonathan Stroud explains that the US Supreme Court’s biggest patent law case of the year may in fact have nothing to do with patents. Most patent lawyers have probably never heard of Kisor v. Wilkie (argued in March 2019), a sleepy veteran’s appeal that—at first blush—appears to have little relation to patent law.
But they should take note, as Stroud points out that the Court in Kisor stands poised to overturn 64 years of precedent by abolishing a type of deference known as Auer (or Seminole Rock) deference which requires courts to defer to an agency’s interpretation of its own rules. This would have significant repercussions on the amount of deference given to almost any action taken by the USPTO and could even go so far as to end the presumption of patent validity, which is premised on deference to the expertise of the USPTO examination.
The case has already drawn dozens of amicus briefs and law review articles, however all indications thus far seems to suggest that Auer deference is on the way out. For more information, view the complete report at IAM.