We believe it will be messy but Judge Gorsuch will be confirmed as Justice Gorsuch. Significantly his textual originalism tilts his constitutional analysis towards limiting the kind of federal agency overreach we have come to expect from USPTO’s IPR. We suspect he similarly will be suspicious of AIA’s legislative history shenanigans, some of which occurred after its passage. He thus is unlikely to support efforts by any USPTO Director to administratively bend AIA’s ambiguities in ICT tech’s direction.
With typical timely alacrity, Gene Quinn has already preliminarily assessed the SCOTUS nominee. http://www.ipwatchdog.com/2017/01/31/trump-picks-neil-gorsuch-for-supreme-court/id=77845/ . Gene referenced an important Gorsuch 10th Circuit Court concurrence regarding federal agency latitude and authority interpreting federal laws affecting their agencies. Judge Gorsuch leans towards judicial interpretation of such matters de novo by Article III Courts rather than being definitively interpreted by politically appointed agency heads. Despite his appointment by President Trump, a reading of Gorsuch’s Gutierrez concurrence linked below suggests that he may take a dim view in general of Executive branch tribunal interpretive overreach. With President Trump authoritarian tendencies, already in full bloom, the new Justice may find sympathy to his left on the SCOTUS bench. Gene’s Chevron discussion below therefor may have echoes elsewhere in the years ahead. We strongly recommend reading Gutierrez and Gene’s analysis (below).
“With respect to Chevron deference, on August 23, 2016, Judge Gorsuch wrote a concurring opinion in Gutierrez-Brizuela v. Lynch, which substantively relates to an Order from the Board of Immigration Appeals. Gorsuch wrote that he thinks it is time to address the elephant in the room; namely that Chevron deference is inconsistent with the Constitution because it deprives the Judiciary of the power to review agency actions and interpretations. Gorsuch explained:
There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.
Gorsuch would go on to write that the Founders thought “separation of powers to be a vital guard against governmental encroachment on the people’s liberties…” http://www.ca10.uscourts.gov/opinions/14/14-9585.pdf . Already we have seen President Trump issue an Executive Order relating to the streamlining of the federal regulatory system, so the nomination of Gorsuch who seems highly skeptical of the ever-increasing power of the federal regulatory system should shock no one. Further, on January 11, 2017, the United States House of Representatives passed the Regulatory Accountability Act of 2017, which in part would modify the scope of judicial review for agency actions. If passed by the Senate and signed into law by President Trump, the Regulatory Accountability Act of 2017 will authorize courts reviewing agency actions to decide all relevant questions of law de novo, without giving deference to the agency’s interpretation. Passage of the Regulatory Accountability Act of 2017 would significantly open the door for the Federal Circuit to reconsider all the Patent Office’s interpretations of the America Invents Act (AIA), and having a Justice on the Supreme Court openly skeptical of vast federal regulatory powers insulated from any judicial review would seem to bode well for patent owners.”
The regulatory accountability bill referenced above was originally drafted to curb Presidents Obama’s Executive Orders and agency rulings. If Congress gets it to his desk, President Trump may have other ideas about its advisability. That said, Justice Gorsuch is unlikely to to shift his constitutional views expressed so forcefully in Gutierrez. In his Wednesday press conference, relative to his committee plans for the 115th Congress Judiciary Chairman Goodlatte supported congressional revision of the Chevron doctrine and seemed to be softening his passion for HR 9 type patent reform in light of recent court initiated reforms.
Along these lines it has been rumored in DC legal circles that SCOTUS failed to grant cert. to MCM’s appeal because some on the Court feared a tie vote would result and preferred awaiting the appointment of a new Justice before engaging in a reexamination of property rights verses public rights. Conservative Justices are said to have believed that Justice Scalia’s replacement might be more protective of the patent property rights MCM’s PTAB converted to public rights. PTAB’s public rights decision was upheld by the Federal Circuit without referencing Chevron. http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1091.Opinion.11-30-2015.1.PDF. But by declaring patent property rights to be public rights and upholding the constitutionality of IPR’s post-grant patent nullification as a mere extension of patent examination, PTAB and the Federal Circuit solidified considerable judicial power at USPTO; power that a whether the de novo bill becomes law, Justice Gorsuch will resist.