WORKING WITHOUT CHEVRON: THE PTO AS PRIME MOVER

Through a proliferation of post-issuance administrative proceedings, the U.S. Patent and Trademark Office (PTO) has become a major player in the fate of patents after their initial examination and grant. In combination with the PTO's more traditional roles in initial examination and general guidance, new post-issuance proceedings enable the PTO to help steer the development of substantive patent law even without general provision of high-level Chevron deference for the agency's interpretations of substantive aspects of the U.S. Patent Act. Contrary to some commentators' suggestions, congressional authorization for new post issuance proceedings does not appear to have included an implicit delegation of interpretive authority generally warranting Chevron deference on such matters. But the PTO can still accomplish much with lower-level deference and the advantages that its common "first mover" position provides.