Testing the Limits of Procedural Rulemaking: How the Federal Circuit Can Use Tafas v. Dudas to Clarify the Authority of the Patent Office

In an effort to reduce the backlog of unexamined patent applications, the United States Patent and Trademark Office created a controversial new set of rules for patent applicants. In Tafas v. Dudas, a Federal District Court judge issued a permanent injunction against the rules, finding their enactment to be outside the Patent Office’s authority. On appeal, the Court of Appeals for the Federal Circuit will have the opportunity to define better both the rulemaking authority of the Patent Office and the Circuit’s approach to the distinction between substantive and procedural rules. This Recent Development proposes a more flexible approach toward classifying a rule as substantive or procedural than that used by the District Court in Tafas and discusses how this approach would affect the analysis of the Patent Office’s rulemaking authority.