Amicus Briefs
Chestek PLLC v. Vidal
CASE SUMMARY
The New Civil Liberties Alliance urges the Supreme Court to hear Chestek PLLC v. Vidal and stop the U.S. Patent and Trademark Office from eschewing notice-and-comment rulemaking. PTO should not be issuing rules that profoundly affect the economy without public input or considering all relevant information. The U.S. Court of Appeals for the Federal Circuit issued a mistaken decision below effectively erasing a statute that requires PTO to follow a notice-and-comment process before promulgating its rules. NCLA is asking the Supreme Court to reverse the Federal Circuit’s error and restore PTO’s Congressionally required accountability to the public.
Although PTO is only permitted to promulgate “procedural” rules, the agency’s decisions carry major economic impact. Congress deliberately enacted 35 U.S.C. § 2(b)(2)(B) to require PTO to engage in a notice-and-comment process prior to rulemaking. Neglecting well-established statutory interpretation methods, the Federal Circuit failed to give effect to the Congressional enactment, essentially reading § 2(b)(2)(B) out of the Patent Act and freeing the PTO to make rules without any democratic accountability.
The decision below misreads both the Patent Act and the Administrative Procedure Act. The ruling also ignores Congress’s deliberate policy in favor of public participation in PTO rulemaking. Such public input is designed to ensure “openness, explanation, and participatory democracy.” With its In re Chestek ruling, the Federal Circuit transformed the Patent Office into perhaps the only federal agency that can completely avoid the public’s routine participation in agency rulemaking. The Supreme Court must end this threat to democratic self-governance.