{"id":10848,"date":"2019-12-30T17:59:28","date_gmt":"2019-12-30T23:59:28","guid":{"rendered":"http:\/\/www.717madisonplace.com\/?p=10848"},"modified":"2019-12-30T18:04:29","modified_gmt":"2019-12-31T00:04:29","slug":"windy-city","status":"publish","type":"post","link":"https:\/\/www.717madisonplace.com\/?p=10848","title":{"rendered":"Windy City"},"content":{"rendered":"\n

It seems as though the decision in Facebook v. Windy City Innovations<\/em> (CJ Prost, O’Malley, Plager) should be handed down soon. I noted the oral argument of this case back in August; but, you might want to check out the oral argument if you missed that earlier post. It is an interesting and well-argued oral argument. The case concerned statutory interpretation of the AIA’s joinder statute. <\/p>\n\n\n\n

A few of the issues that cropped up in the oral argument were: <\/p>\n\n\n\n

  1. Why didn’t the PTO intervene in the case to address whether its precedential opinion should be given Chevron<\/em> deference?<\/li>
  2. Should the PTO’s precedential opinion panel (POP) decisions be given Chevron<\/em> deference?<\/li>
  3. Did Congress error by referring to infringement of a patent vs. infringement of a patent claim(s) in the AIA?<\/li>
  4. Is the statute ambiguous?<\/li>
  5. Is there a clerical error in the statute?<\/li>
  6. Should the court ask the PTO for its thoughts — even though the PTO chose not to weigh-in in the first instance? (Note: I seem to recall that the court did later ask the PTO for its thoughts.)<\/li><\/ol>\n\n\n\n

    Judge Plager expressed the view that the USPTO’s precedential opinion panel decisions were not entitled to Chevron<\/em> deference:<\/p>\n\n\n\n