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[ab]

Can a patent be held invalid due to violating a CFR rule?  Does anyone know of case law on this?  I am aware of the Chevron doctrine that an agency's reasonable interpretation of statutory law will render particular administrative law permissible.  I am wondering if there are particular instances of this with respect to patent law and 37 CFR.

[ab]

I guess I should clarify that I am aware 37 CFR is the governing body of rules for patent law, so probably many/most invalidity decisions cite 37 CFR.  My question pertains to the relationship between 37 CFR and 35 USC.  35 USC is statutory law and I can see invalidity being founded on 35 USC considerations.  If something is mentioned in 37 CFR but not in 35 USC, will/could violating that 37 CFR rule lead to invalidity? 

thanks in advance.

[Isaac]

Can a patent be held invalid due to violating a CFR rule?  Does anyone know of case law on this?  I am aware of the Chevron doctrine that an agency's reasonable interpretation of statutory law will render particular administrative law permissible.  I am wondering if there are particular instances of this with respect to patent law and 37 CFR.

I don't think you can lump all of the rules together in this way.  Some of the rules deal strictly with procedural aspects involving how things are handled at the patent office, while others deal with substantive issues related to patentability and simply recite or are strongly tied to statutory requirements.  But even that kind of separation may not be enough.

A fairly recent CAFC opinion holds that many of the procedural rules and maybe a few apparently substantive ones are unchallengable in an infringement action, because the challenge would not involve one of the 4 categories of defenses set out in 35 USC 282.  The question in the case actually involved whether an application could be revived when "unintentionally abandoned" under some circumstance I don't recall exactly.  Rather than interpretting the statutes as allowing such, or giving the PTOs interpretation Chevron deference, the CAFC instead made a more far reaching decision.  I believe the parties in the case were Aristocrat and IGT ...