More on Judge Gorsuch

The Judge Gorsuch concurrent Gutierrez opinion calls for fresh analysis of the venerable Chevron Doctrine, according to which agency interpretations of ambiguous statutory language are routinely deferred to by the courts. According to Judge Gorsuch, this gives the Executive branch what amounts to unconstitutional Article I law-making authority clearly conferred on Congress by Article II.

AIA itself is rife with ambiguities that USPTO seems to be interpreting in ways unfavorable to patent holders. Prior to its passage AIA’s change to “First Inventor to File” and PTAB and Federal Circuit IPR interpretations raised serious unresolved constitutional issues that at some point will be reviewed and more recent decisions by SCOTUS itself regarding Sec 101 eligibility in Alice/Mayo etc. have confused and undermined patent prosecution and investor reliance on the stability of patented technology.

And at a more established level, patent holders generally resent SCOTUS’ judicial interpretations defining Sec 101’s scope and constitutionally-created patent eligibility. Article I. Sec 8, Clause 8 which empowers the United States Congress.” To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” not the courts.

It would seem that irrespective of other more prominently discussed judicial tendencies the views of Judge grouch on patents may begin a roll-back of anti-patent judicial decision making. ”

The Gutierrez concurrence begins here at page 15.

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