What West Virginia v. Environmental Protection Agency means for IP
On November 1st, ranking member of the House Judiciary Committee Jim Jordan (R-OH) sent letters to the heads of several federal agencies, asking what changes had been made in their agencies in light of the Supreme Court ruling in West Virginia v. Environmental Protection Agency. Kathi Vidal, the director of the United States Patent and Trademark Office (USPTO), was one of these recipients. While Congressman Jordan’s letters are clearly political, it is ambiguous to what extent West Virginia will have on the subject matter eligibility for patents.
The Supreme Court ruled 6-3 in West Virginia that the Environmental Protection Agency (EPA) unlawfully created emission caps for the purpose of generation shifting. The Court reasoned that the Clean Air Act never explicitly gave the EPA the power to create emission caps, and that this was outside a reasonable interpretation of the text of the Clean Air Act. Given that switching from high-emission fuels to lower-emission fuels was of “vast economic and political significance,” Congress needed to expressly give them authority to carry out this change known as ‘major questions doctrine.’ This idea runs against long-standing ‘Chevron deference’ as established in Chevron U.S.A., Inc. v. NRDC which held that a government agency must obey any clear lines in the sand when interpreting law, but courts will defer to the agency in ambiguous situations so long as the interpretation is reasonable.
While most legal observers have commented on the impact of West Virginia on federal initiatives to curb climate change, Congressman Jordan sees the logic undergirding the ruling as applying to the USPTO, among other administrative and law enforcement agencies, accusing them of “abus[ing] administrative law.”
The USPTO has requested comments from IP industry stakeholders regarding subject matter eligibility guidelines for examiners assessing Section 101 issues in filed patent applications. 35 U.S. Code § 101 states that “whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title.” Patent attorney Curtis A. Evans filed a comment pleading for Congressional action to stop uncertainty regarding Section 101 eligibility, as he believes it leaves the agency vulnerable to major questions doctrine. Legislative clarity is also needed to ensure that patent eligibility confusion does not continue to be used by Big Tech to escape liability for taking inventions, per Evans.
It is not unclear whether federal courts will view IP law as a question holding “vast economic and political significance,” regardless of Congressman Jordan’s interpretations. It appears doubtful that Congress will ever bother taking the time to clear up Section 101 ambiguities; patent reform doesn't make for good campaign ads. A system which allows agencies enough autonomy to fulfill their purpose while maintaining Congressional oversight over them is most ideal for not just the USPTO, but the federal government as a whole.
AUTHORED BY:
Nick Weising
PHOTO CREDITS:
Greg Nash/Pool/Getty Images
