- PTO Has Substantive Rulemaking Authority Over Post-Grant Proceedings But Unclear If That Extends To Substantive Patentability Standards: Under Cuozzo (U.S. 06/20/2016), Patent Office rulemaking authority over post-grant review proceedings is not limited to procedural rules, unlike its more limited rulemaking authority over ex parte prosecution under 35 U.S.C. § 2(b)(2)(A). Softview (Fed. Cir. 07/26/24) (“section 42.73(d)(3) of the PTO’s regulations was lawfully promulgated pursuant to the agency’s rulemaking authority under section 316(a)(4) of the Patent Act,” but “Section 316(a)(4) does not grant the PTO the authority to legislate new patent laws.”). Congress gave PTO authority to decide whether to apply “broadest reasonable interpretation” of claims in IPR proceedings,but did not grant “the PTO power to interpret substantive statutory ‘patentability’ standards.” In re Cuozzo (Fed. Cir. 07/08/15) (2-1) (this point was added in new opinion), aff’d on other grounds (U.S. 06/20/2016) (IPR statute’s grant to PTO to issue rules “governing inter partes review,” is not limited to procedural rules, and thus includes claim-construction standard).