What to Expect From Neil Gorsuch on IP, Patents and Trade Secrets

, The National Law Journal

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Though Gorsuch's views on patents are mostly unknown, the Tenth Circuit judge has had plenty to say in other areas of intellectual property. And attorneys see signs that he might scale back some procedures created by the America Invents Act.

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What's being said

  • CARDINAL IP

    "No...ex post facto Law shall be passed." THE CONSTITUTION, ARTICLE I, SECTION 9, CLAUSE 3 BIA‘S ACTION was retroactive and unconstitutional.

  • Cardinal IP

    Gorsuch on the Chevron deference doctrine and ex post facto law: ... the Supreme Court has instructed us that, when a statute is ambiguous and an executive agency’s interpretation is reasonable, the agency may indeed exercise delegated legislative authority to overrule a judicial precedent in favor of the agency’s preferred interpretation.... to confront this question: accepting that an agency may overrule a court, may it do so not only prospectively but also retroactively, applying its new rule to completed conduct that transpired at a time when the contrary judicial precedent appeared to control? ... Now that curious question has returned, this time with a twist.... Employing the usual tools of statutory interpretation, this court in 2005 determined that the Attorney General’s discretion to afford relief without insisting on a decade-long waiting period remained intact. . . . There the BIA offered its view that — as a matter of policy discretion — the statutory tension should be resolved against affording the Attorney General any discretion to consider applications for adjustment of status when § 1182(a)(9)(c)(i)(I) applies. ... And, of course, no one before us contends that Congress has expressly conveyed to the BIA the power to declare its rules retroactive (ex post facto law??).... In De Niz Robles we explained that legislation is presumptively prospective in its operation because the retroactive application of new penalties to past conduct that affected persons cannot now change denies them fair notice of the law and risks endowing a decision maker expressly influenced by majoritarian politics with the power to single out disfavored individuals for mistreatment. These very same concerns would arise if the BIA could apply Briones retroactively to Mr. Gutierrez-Brizuela’s conduct. After all, back in 2009 the law expressly gave Mr. Gutierrez-Brizuela two options: he could seek an adjustment of status pursuant to Padilla-Caldera I or accept a ten-year waiting period outside the country. Relying on binding circuit precedent, he chose the former path. Yet the BIA now seeks to apply a new law to block that path at a time when it’s too late for Mr. Gutierrez-Brizuela to alter his conduct. Meaning that, if we allowed the BIA to apply Briones here, Mr. Gutierrez-Brizuela would lose the seven years he could’ve spent complying with the BIA’s ten year waiting period and instead have to start that waiting period now. The due process concerns are obvious: when Mr. Gutierrez-Brizuela made his choice, he had no notice of the law the BIA now seeks to apply. And the equal protection problems are obvious too: if the agency were free to change the law retroactively based on shifting political winds, it could use that power to punish politically disfavored groups or individuals for conduct they can no longer alter. ... We found these authorities and their factors also counseled against allowing the BIA to apply its decision [retroactively] to individuals like Mr. De Niz Robles. Neither should any of this come as a surprise.... a doctrinal rubric for assessing the underlying due process and equal protection implications associated with retroactive agency action.

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