October 2016
CIPA Journal
Authored by Timothy P. McAnulty and Kassandra M. Officer
In Halo Electronics, Inc. v. Pulse Electronics, Inc., the Supreme Court abrogated the Federal Circuit’s relatively well-settled Seagate test for determining when a district court may increase patent-infringement damages for willful infringement. Under U.S law, a district court does not consider a party’s intent in determining whether the party is liable for direct infringement. However, district courts have the discretion to consider increasing (up to trebling) damages for infringement if the court determines the party’s infringement was willful. The fundamental purpose of increasing damages is to punish wanton or malicious infringement. In order to obtain increased damages under the Federal Circuit’s prior Seagate test, a patentee was required to show by clear and convincing evidence that the infringer was objectively reckless and had subjective knowledge of the infringement. The Supreme Court found the Federal Circuit’s objective recklessness prong inconsistent with the governing statute and improper because it overly restricted the discretion of the district court. This holding significantly increases the potential for increased damages in future patent-infringement cases.
In Cuozzo Speed Technologies, LLC v. Lee, the Supreme Court, in a highly anticipated decision, affirmed the Federal Circuit, holding that review of Patent Trial and Appeal Board ("Board") institution decisions is barred by statute, and the USPTO’s use of the broadest reasonable interpretation (BRI) claim construction standard was a reasonable exercise of its rulemaking authority. Although this decision maintained the status quo, it does settle these issues, providing certainty to both petitioners and patent owners.
U.S. patent law permits a district court in its discretion to "increase damages [for infringement] up to three times the amount found or assessed" if the infringement was willful.1 In In re Seagate Technology, LLC, the Federal Circuit set forth a two-prong test for determining when a district court may increase damages.2 Under the Seagate test, a patentee was required to show that the infringer was both objectively reckless and had subjective knowledge of the infringement.3 The "objective recklessness" prong required a patentee to show by clear and convincing evidence that "the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent." But if the accused infringer raised a "substantial question as to the validity or non-infringement of the patent,"4 the objective recklessness prong would not be satisfied.5 The "subjective knowledge" prong required a patentee to show by clear and convincing evidence that the risk of infringement "was either known or so obvious that it should have been known to the accused infringer."6 An award of increased damages at the district court was subject to trifurcated review at the Federal Circuit. The objective recklessness prong of the Seagate test was reviewed de novo, the subjective knowledge prong was reviewed for substantial evidence, and the ultimate award of increased damages was reviewed for an abuse of discretion.
In effect, the Seagate test substantially lessened the likelihood that a patentee would be awarded increased damages. In Halo Electronics, Inc. v. Pulse Electronics, Inc., however, the U.S. Supreme Court found the Seagate test was overly restrictive, which, going forward, should make it easier for patentees to receive increased damages. In Halo, the Supreme Court granted certiorari in two cases (Halo Electronics, Inc. v. Pulse Electronics, Inc. and Stryker Corp. v. Zimmer, Inc.) and addressed whether the Seagate test was (i) consistent with the statutory authority granting district courts discretion to increase damages and (ii) provided the appropriate standard of review under the statute, as well as whether Congress ratified the Seagate test when enacting the America Invents Act of 2011 (AIA).7 The Supreme Court upheld none of these arguments. In particular, the Supreme Court eliminated the objective recklessness prong of the Seagate test, lowered the standard of proof from the clear and convincing standard to the preponderance of the evidence standard, and adopted the more deferential abuse of discretion standard on review.
Halo Electronics, Inc. ("Halo"), and Pulse Electronics, Inc. and Pulse Electronics Corporation (collectively, "Pulse") supply electronic components, particularly surface mount electronic packages.8 Halo alleged that Pulse was infringing its patents covering the packages and offered Pulse multiple licenses.9 Believing that Halo’s patents were invalid, Pulse disregarded the offers and continued to supply the packages.10 Halo subsequently sued Pulse for infringement.11 And while the jury found there was a high probability Pulse had willfully infringed, the district court declined to award increased damages.12 Reasoning that Pulse’s invalidity defense "was not objectively baseless," the district court concluded that Halo had failed to establish the objective recklessness prong of the Seagate test, and the Federal Circuit affirmed.13
Stryker Corporation, Stryker Puerto Rico, Ltd., and Stryker Sales Corporation (collectively, "Stryker"), and Zimmer, Inc. and Zimmer Surgical, Inc. (collectively, "Zimmer") compete in the market for orthopedic pulsed lavage devices.14 These devices deliver pressurized irrigation for cleaning wounds during orthopedic procedures.15 Stryker sued Zimmer for infringement.16 After a jury found that Zimmer willfully infringed, the district court awarded Stryker $70 million in lost profits and an additional $6.1 million in supplemental damages.17 Exercising its discretion, the district court trebled the award, resulting in a final award of over $228 million.18 On appeal, the Federal Circuit affirmed the judgment of infringement but vacated the award of treble damages.19 Applying de novo review, the Federal Circuit held that increased damages were not appropriate because Zimmer had asserted objectively "reasonable defenses" during litigation.20
The Supreme Court, in a unanimous opinion authored by Chief Justice Roberts, began its analysis by reviewing language of the governing statute.21 In particular, the Court acknowledged that the statute does not contain any explicit conditions limiting when increased damages are appropriate, though district courts have historically awarded increased damages in cases of willful (wanton or malicious) infringement.22 The purpose of increasing damages is not to compensate the patentee, but to punish the infringer.23 Moreover, the statute simply states the "court may increase the damages."24 According to the Court, the word "may" indicates that district courts can exercise their discretion and award increased damages given the equities of the dispute.25 The Court emphasized that discretion is "rarely without limits" and must be "exercised in light of the considerations underlying the discretion."26 Relying on legislative and judicial history, the Court concluded that district courts should consider increased damages only in cases of egregious infringement but that the statute allows district courts to use their discretion in determining what constitutes egregious infringement.27
The Court then considered the Seagate test, concluding that although it appropriately limited increased damages to cases of egregious infringement, it inappropriately limited district courts’ discretion.28 The Court principally took issue with the objective recklessness prong, concluding that it could preclude many of the most egregious infringers from the penalty of increased damages.29 The Court further concluded that this prong permitted an infringer to assert defenses that it did not rely on or was not even aware of before suit and escape penalty "solely on the strength of [its] attorney’s ingenuity."30 In light of these concerns and relying on its recent decision Octane Fitness, LLC v. ICON Health & Fitness, Inc. (relating to district courts’ discretion to award attorney fees),31 the Court held the objective recklessness prong should not be a prerequisite for increased damages.32
The Supreme Court also held that the clear and convincing standard of proof required by Seagate was inconsistent with the underlying statute.33 Relying again on Octane Fitness, the Court held that the appropriate standard of proof is the lower preponderance of the evidence standard: "patent-infringement litigation has always been governed by a preponderance of the evidence standard."34 The Court also noted that Congress had expressly required a higher standard of proof in other sections of the Patent Act and, by negative implication, did not therefore intend for a higher standard of proof to apply to increased damages.35
After rejecting the Federal Circuit’s Seagate test, the Supreme Court similarly rejected the Seagate trifurcated appellate review structure.36 The Court, relying again on Octane Fitness, held that that ultimate award of increased damages should be reviewed for an abuse of direction, allowing for review of district court decisions informed by the considerations it identifed.37 The Court reasoned that the statute "commits the determination" of whether increased damages are appropriate "to the discretion of the district court" and "that decision is to be reviewed on appeal for abuse of discretion."38 This reasoning, while in the context of patent infringement is consistent with review of district court discretion in other areas of U.S. law.
Finally, the Supreme Court also rejected the argument that Congress ratified the Seagate test when it enacted the AIA without amending the statute.39 In particular, respondents argued that through the AIA, Congress had the opportunity to amend the statute to repudiate the Seagate test but did not do so.40 According to respondents, Congress’s failure to repudiate the test should be understood as Congress implicitly incorporating it into the statute.41 In addition, Congress enacted a separate statutory provision as part of the AIA prohibiting patent owners from using an accused infringer’s failure "to obtain advice of counsel" as evidence "that the accused infringer willfully infringed the patent."42 Respondents argued that this specific statutory provision thereby endorsed the Seagate test.43 The Supreme Court rejected these arguments and instead found that Congress failed to specifically codify the Seagate test and that any reference relating to willfulness in the AIA was not an outright endorsement of Seagate.44 Instead, the Court explained: "[W]illfulness has always been a part of patent law, before and after Seagate."45 The Court also rejected the policy argument that allowing district courts unlimited discretion to award increased damages would impede innovation.46 The Court reasoned that such a concern could not "justify imposing an artificial construct… on the discretion conferred under [the statute]."47
Justice Breyer, joined by Justices Kennedy and Alito, authored a concurring opinion.48 The concurrence emphasized the judicial and legislative history and sought to expound upon the discretionary limits of the statute.49 First, the concurrence analyzed the statute and the use of the word "may", emphasizing that a district court "may" award increased damages and drawing a distinction that the statute does not state a district court "must" award increased damages.50 The concurrence also highlighted the point that the "failure of an infringer to obtain advice of counsel" is not dispositive of willful infringement, effectually upholding the Federal Circuit’s similar denouncement of an affirmative obligation to obtain advice of counsel in Seagate.51 Indeed, before Seagate, the threshold for willful infringement was more comparable to negligence, and effectively made obtaining advice of counsel (of non-infringement or invalidity) standard U.S. practice. The concurrence explained that although advice of counsel may be helpful, it is not always prudent in situations involving smaller companies or less-funded inventors.52 Lastly, the concurrence emphasized that "enhanced damages may not serve to compensate patentees for infringement-related costs or litigation expenses", as Congress addressed those costs and expenses in separate provisions of the Patent Act.53 Justice Breyer’s concurrence strongly cautioned against awarding increased damages too liberally, explaining that such liberal awards allow patents to "reach beyond [their] lawful scope to discourage lawful activity."54 The concurrence thus reinforced that districts courts must be careful in awarding increased damages, ensuring that only egregious infringement is penalized.55
In the much anticipated Cuozzo Speed Technologies, LLC v. Lee, the Supreme Court addressed whether the AIA specifically bars judicial review of institution decisions in inter partes review proceedings and whether the USPTO’s promulgation of the BRI claim construction standard was a reasonable exercise of its rulemaking authority.56 Before the Court’s decision, the reviewability of institution decisions in post-grant proceedings was arguably unsettled. For example, one day after a divided Federal Circuit panel in In re Cuozzo Speed Technologies, LLC57 held that the statute bars judicial review of institution decisions in inter partes review proceedings altogether, another divided Federal Circuit panel in Versata Development Group, Inc. v. SAP American, Inc.58 held that a statute with identical language does not bar judicial review of certain jurisdictional aspects of institution decisions in covered business method review proceedings. In addition, many practitioners have argued that the Board’s application of the BRI claim construction standard has contributed to an unexpectedly high rate of patent claim cancellations and is inconsistent with the standard applied by district courts. Nevertheless, the Supreme Court maintained the status quo, holding that a decision to institute inter partes review is non-appealable by statute and that the Board’s use of the BRI standard is a reasonable exercise of the USPTO’s rulemaking authority.
Garmin International, Inc. and Garmin USA, Inc. petitioned for inter partes review of claims of a patent owned by Cuozzo Speed Technologies, Inc.59 The challenged patent covered a modified speedometer that would indicate when a driver was driving over the speed limit.60 At the primary issue, the Board instituted review of claim 17 on two obviousness grounds and applied those same to grounds to claims 10 and 14, even though Garmin did not specifically raise those grounds against claims 10 and 1461. The Board reasoned that claim 17 depends from claim 14, which depends from claim 10, and the grounds were equally applicable.62 Applying the BRI standard to construe the claims, the Board concluded that claims 10, 14, and 17 were unpatentable as obvious over the asserted references.63 Cuozzo appealed to the Federal Circuit, arguing that the Board improperly instituted review of claims 10 and 14 and improperly applied the BRI standard to construe the claims.64 The Federal Circuit rejected both arguments, holding that a decision to institute inter partes review is non-appealable under the statute and affirming the Board’s use of the BRI standard as a reasonable exercise of the USPTO’s rulemaking authority.65
Before the Supreme Court, Cuozzo advanced similar arguments. In particular, Cuozzo argued that the AIA strictly limits the Board’s authority to institute proceedings and that the Board cannot be permitted to violate that limit.66 Cuozzo further argued that the statute only bars appeal of the institution decision itself, allowing review of institution-related issues on appeal from a final written decision.67 In addition, Cuozzo argued that the Board’s use of the BRI standard is an unreasonable exercise of the USPTO’s rulemaking authority.68 Cuozzo distinguished the proper application of the BRI standard in examinational proceedings where an applicant has a right to amend compared to adjudicatory proceedings where a patent owner "has no right to amend [or] very little practical ability to amend."69 Cuozzo also emphasized that Congress originally created inter partes review proceedings as a surrogate to litigation and allowing the USPTO to use the BRI standard when district courts use the relatively narrower plain and ordinary Phillips standard, frustrated this purpose.70 The Court rejected each of Cuozzo’s arguments and affirmed the Federal Circuit.
Justice Breyer, joined by Chief Justice Roberts and Justices Kennedy, Thomas, Ginsburg, and Kagan, authored the majority opinion. In that opinion, the Court first addressed whether the statute bars judicial review of institution decisions in inter partes review proceedings.71 Holding that it does, the Court relied primarily on the plain language of the statute itself, which expressly provides that:
"[t]he determination by the Director whether to institute an inter partes review under this section shall be final and nonappealable."72
The Court further explained that permitting judicial review of institution decisions would undermine Congress’s grant of authority to the USPTO to revisit and revise patents.73 And reinforcing its conclusion, the Court relied on other statutory provisions that expressly limit appellate review to "the final written decision" in an inter partes review and similarly limited judicial review of institution decisions in related contexts such as inter partes reexamination.74
Moreover, the Court declined to interpret the statutory prohibition as being limited to only interlocutory appeals and permitting judicial review of institution decisions following a final written decision.75 The Court reasoned that reading in such a limitation would be superfluous in light of the Administrative Procedure Act’s76 provisions already limiting judicial review to final agency decisions.77 The Court acknowledged the "strong presumption" in favor of judicial review but concluded that the presumption had been overcome by clear indications by Congress to the contrary.78 The Court cautioned, however, that its interpretation of the statute was limited to questions closely tied to the application and interpretation of statutes relating to the institution decision and did not extend to:
"the precise effect of [the statutory prohibition] on appeals that implicate constitutional questions, that depend on other less closely related statutes, or that present other questions of interpretation that reach, in terms of scope and impact, well beyond 'this section'."79
Justice Alito, joined by Justice Sotomayor, authored an opinion concurring in part and dissenting in part.80 In Justice Alito’s view, the statute bars interlocutory appeals of institution decisions only. It does not bar review of that initial decision after a final written decision. Justice Alito first considered the language of the statute, noting it states that institution decisions are "non-appealable" but does not state that institution decisions are "not subject to review."81 According to Justice Alito, this distinction indicates just a bar on appeal from the institution decision itself but permits review of all issues, including institution-related issues, in an appeal from a final written decision.82 Justice Alito criticized the majority for relying too heavily on other statutory provisions that specifically state that:
"[a] party dissatisfied with the final written decision… may appeal the decision."83
According to Justice Alito, this statutory provision does not restrict the issues that may be raised in such an appeal.84 Justice Alito also expressed concerns that the majority’s interpretation may result in institution of clearly improper petitions such as those that are time-barred.85 In summary, Justice Alito would have held that the statute does not bar judicial review of the Board’s compliance with any of the limits Congress imposed on the institution of post-grant proceedings.86
The Court then addressed whether the USPTO’s promulgation of the BRI standard was a reasonable exercise of its rulemaking authority.87 The Court first stated that it interprets Congress’s grant of rulemaking authority in light of its seminal decision in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.88 Under Chevron, if a statute is clear, then a federal agency must follow the statute; but if the statute is ambiguous, then the agency may enact rules that are reasonable in light of the text, nature, and purpose of the statute.89
Here, the Supreme Court found the AIA, which separately provides that "[t]he Director shall prescribe regulations establishing and governing inter partes review under this chapter," is ambiguous.90 In particular, the Court found that the statute does not "unambiguously direct[] the agency to use one standard or the other" but, instead, allows the USPTO to issue rules "governing inter partes review."91 The Court rejected Cuozzo’s argument that the purpose of inter partes review proceedings—to replace the previous inter partes reexamination proceedings with more judicial-like proceedings—suggested that Congress intended for the USPTO to apply the same claim construction standard applied by district courts.92 The Court explained that inter partes review proceedings are less like judicial proceedings and more like specialized agency proceedings.93 In particular, the Court emphasized several distinctions between inter partes review proceedings and district court litigation. For example, in inter partes review proceedings, petitioners may lack constitutional standing (no direct adversarial dispute needed), petitioners need not remain in the proceeding (petitioners can settle and withdraw, even if the patent owner remains), the Board may intervene on appeal to defend its decision (even if a petitioner withdraws), and the burden of proof is lower.94 According to the Court, this indicates that inter partes review proceedings were enacted to achieve a somewhat different purpose than district court litigations.95 Namely, inter partes review proceedings help to protect the public’s interest "in seeing that patent monopolies… are kept within their legitimate scope" in addition to resolving patent-related disputes among parties.96
With this foundation, the Court then addressed whether the USPTO’s promulgation of the BRI standard was a reasonable exercise of its rulemaking authority, holding that it was.97 The Court first found that construing claims according to their BRI helps to protect the public by ensuring the patent applicants draft claims narrowly and do not exclude too much knowledge from the public domain.98 The Court also found that the USPTO "has used this standard for more than 100 years" in proceedings (like reexaminations and interferences) that resemble district court litigations.99 The Court rejected Cuozzo’s argument that use of the BRI standard is unfair in inter partes review proceedings, as a patent owner does not have any absolute right to amend the claims.100 The Court reasoned that the patent owner has an opportunity to submit a motion to amend as well as several opportunities to amend the claims during prosecution, removing any obvious unfairness.101 The Court similarly rejected Cuozzo’s argument that use of the BRI standard in inter partes review proceedings and the plain and ordinary meaning standard in district court litigations may produce inconsistent results, reasoning that "[t]his possibility… has long been present in our patent system."102 The Court further reasoned that because the USPTO may consolidate inter partes review proceedings with other USPTO proceedings, it was not unreasonable for it to promulgate rules ensuring consistency among its proceedings rather than with district court litigations.103
The Supreme Court’s decision in Halo gives district courts considerable discretion in considering whether to award increased damages. As emphasized by the Court, this outcome will allow district courts to award increased damages in cases involving the "wanton and malicious pirate." Without the objective recklessness requirement or the clear and convincing standard of proof, the potential for increased damages is
substantially heightened. This will likely result in more pre-litigation and opinion counseling, as clients attempt to protect themselves from potential litigation and the claim for increased damages. Moreover, by abrogating the Seagate test and by lowering the standard of proof to the preponderance of the evidence standard, the Court’s decision incentivizes and enhances the effectiveness of patent enforcement. Although the Supreme Court held the Federal Circuit’s Seagate test was too restrictive on district courts, it is important to note that the majority and, more extensively the concurrence, emphasized that the district court’s discretion is not unlimited.
Though the Supreme Court’s decision in Cuozzo maintained the status quo, it does provide greater certainty to both petitioners and patent owners. Unless and until Congress intervenes, the BRI claim construction standard applies in post-grant proceedings and institution decisions are largely shielded from judicial review. As a result, patent applicants must account for both the relatively broader interpretation of granted patent claims in post-grant challenges under the BRI standard and the relatively narrower interpretation of claims in district court litigation under the Phillps standard. Regardless, claim construction remains a large aspect of post-grant challenges. Moreover, given the relatively high rate of institution, patent applicants are well-served to provide a basis through application drafting and prosecution to develop the basis for a clear and expected interpretation of claims. Broad or vague claim terms are likely to lead to broad interpretation in a post-grant challenge increasing the likelihood of applicable prior art. In addition, because institution decisions are non-appealable, petitions must be thoughtfully articulated to ensure that all grounds are instituted and preliminary responses must capitalize on weaknesses to eliminate some (or all) grounds. The Court expressly left open the possibility of:
"appeals that implicate constitutional questions, that depend on other less closely related statutes, or that present other questions of interpretation that reach, in terms of scope and impact, well beyond 'this section'."
And while some commentators have suggested that leaves the issue unresolved, it is seems more likely that the Court merely cautioned that the statute does not (and cannot) supersede the protections afforded by the constitution and other non-related statutory provisions. Instead, it seems likely that specific patent issues, like claim construction and application of prior art, in institution decisions will remain shielded from judicial review.
1 35 U.S.C. § 284.
2 497 F.3d 1360 (2007) (en banc).
3-4 Id. at 1371.
5 Bard Peripheral Vascular, Inc. v. W. L. Gore & Assoc., Inc., 776 F.3d 837, 844 (Fed. Cir. 2015).
6 Seagate, 497 F.3d at 1371.
7 Halo, 136 S. Ct. 1923 (2016).
8 Id. at 1930.
9 Id. at 1930-31.
10-21 Id. at 1931.
22-23 Id. at 1928. The Patent Act of 1793 mandated increased damages for any type of infringement, but the Patent Act of 1836 limited increased damages to "the circumstances of the case." Id. According to the Court, the change was prompted by the injustice of subjecting an infringer "'who acted in ignorance or good faith' to the same treatment as the 'wanton or malicious pirate.'" Id. (quoting Seymour v. McCormick, 57 U.S. 480, 488 (1853)).
24-25 Id. at 1931 (emphasis added).
26 Id. at 1931-32 (citations omitted).
27-30 Id. at 1932.
31 134 S. Ct. 1749, 1757 (2016). In Octane Fitness, the Supreme Court reviewed 35 U.S.C. §285, "which allows district courts to award attorney’s fees to prevailing parties in 'exceptional' cases." See generally id. To establish exceptional cases, the Federal Circuit adopted a two-part test that required an objective and subjective component similar to the Seagate framework. See id. at 1754. The Court rejected the test, holding that "subjective bad faith… may sufficiently set itself apart from mine-run cases to warrant a fee award." Id. at 1757. Despite the contextual differences, the Supreme Court found the reasoning instructive for its analysis of the Seagate test. Halo, 136 S. Ct. at 1932-33.
32 Halo, 136 S. Ct. at 1933-34.
33 Id. at 1934.
34-37 Id. (quoting Octane Fitness, 134 S. Ct. at 1758).
38 Id. (quoting Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 134 S. Ct. 1744, 1748 (2014)).
39-40 Id. at 1934-35.
41 See id. (citing Br. for Resp’ts in No. 14-1513 at 27); see Br. for Resp’ts in No. 14-1513 at 18 ("Where Congress legislates against the backdrop of such a consistent body of law, and expresses no dissatisfaction with it and no intent to change it, it is understood to have incorporated that prior law into the statute.").
42 35 U.S.C. §298
43-47 Id. at 1935.
48-50 Id. at 1936.
51-52 Id. at 1936-37.
53-54 Id. at 1937.
55 Id. at 1937-38.
56 136 S. Ct. 2131 (2016).
57 793 F.3d 1268 (Fed. Cir. 2015).
58 793 F.3d 1306 (Fed. Cir. 2015).
59 Cuozzo, 136 S. Ct. at 2138.
60-62 Id. The patent at issue was U.S. Patent No. 6,788,074. Id.
63 Id. at 2138-39.
64-65 Id. at 2139.
66-67 Br. for Pet. in No. 14-446 at 46-55.
68-70 Id. at 16-45.
71 Cuozzo, 136 S. Ct. at 2139.
72 Id. (citing 35 U.S.C. §314(d)).
73 Id. at 2139-40.
74-75 Id. at 2140; id. (citing 35 U.S.C. §312(c)(2006 ed.) (The "determination" that a petition for inter partes reexamination "raise[s]" a "substantial new question of patentability" is "final and nonappealable.")).
76 The Administrative Procedure Act provides, inter alia, a process for federal judicial review of federal administrative agency decisions. The Administrative Procedure Act provides that a court may only set aside an agency action that is not subject to formal trial-like procedures if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. §706(2)(A). In contrast, if the agency action is subject to formal trial-like procedures, it may only be set aside if it "unsupported by substantial evidence." 5 U.S.C. §706(2)(E).
77 Cuozzo, 136 S. Ct. at 1240 (citing 5 U.S.C. §704).
78 Id. at 2140-41.
79 Id. at 2141-42.
80 Id. at 2148-56.
81-82 Id. at 2151.
83-84 Id. at 2152.
85 Id. at 2154-55.
86 Id. at 2155.
87 Id. at 2142.
88-91 Id. (citing Chevron, 104 S. Ct. 2778 (1984)).
92 Id. at 2143.
93-94 Id. at 2143-44.
95 Id. at 2144.
96-97 Id. (citations omitted).
98 Id. at 2145.
99-101 See id.
102 Id. at 2146.
103 Id. Justice Thomas authored a concurring opinion encouraging the Court to reconsider Chevron’s fiction that "ambiguity in a statutory term is best construed as an implicit delegation of power to an administrative agency to determine the bounds of the law." Id. at 2148-49.
Originally printed in CIPA Journal in October 2016. This article is for informational purposes, is not intended to constitute legal advice, and may be considered advertising under applicable state laws. This article is only the opinion of the authors and is not attributable to Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, or the firm's clients.
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