Windy City

It seems as though the decision in Facebook v. Windy City Innovations (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.

A few of the issues that cropped up in the oral argument were:

  1. Why didn’t the PTO intervene in the case to address whether its precedential opinion should be given Chevron deference?
  2. Should the PTO’s precedential opinion panel (POP) decisions be given Chevron deference?
  3. Did Congress error by referring to infringement of a patent vs. infringement of a patent claim(s) in the AIA?
  4. Is the statute ambiguous?
  5. Is there a clerical error in the statute?
  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.)

Judge Plager expressed the view that the USPTO’s precedential opinion panel decisions were not entitled to Chevron deference:

You can listen to the entire oral argument here:

The briefing in an earlier iteration of this case is available at this prior post: [ https://www.717madisonplace.com/?p=9474 ].

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