Does Chevron deference apply to PTAB Precedential Opinion Panel decisions?

In an August 12, 2019 order, the Federal Circuit asked the government what deference, if any, should the court give PTAB Precedential Opinion Panel ("POP") decisions. Facebook, Inc. v. Windy City Innovations, LLC (Fed. Cir. 2019). The director argues that Chevron deference should apply. The parties are to brief the issue on October 1st.

Specifically at issue in the case was the POP opinion in Proppant Express Investments, LLC v. Oren Technologies, LLC, No. IPR2018-00914, Paper 38 (P.T.A.B. Mar. 13, 2019). In that decision, the POP set out the scope of the Director’s discretion to grant joinder under Section 315(c). That section allows joinder "as a party to [an instituted] inter partes review any person who properly files a petition under section 311." The Proppant decision addressed joining subsequent petitions by the same party. Facebook had originally filed four IPR petitions challenging a subset of the 830 patent claims. Subsequently and after the one-year bar had expired, Windy City identified the claims to be asserted at trial. Facebook then filed follow-on petitions challenging these claims and requesting joinder; the Board granted joinder. On Appeal, Windy City challenged the Board's authority to grant joinder.

In the government brief, the Director argues that Chevron deference should apply both not only to notice-and-comment rulemaking but also to adjudications. The Director noted that the Board invited amici briefing in the Proppant case, providing the public with the ability to address any potential concerns. The Director also noted that Chevron deference applies to ITC adjudications and Commerce Department antidumping rulings. Finally, the Director argues that if Chevron deference does not apply, then Skidmore deference should apply.

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