The Loper Loophole: Will Loper Bright Chip Away at Federal Circuit Rule 36 Summary Affirmances?

Criticism of the U.S. Court of Appeals for the Federal Circuit’s practice of issuing summary affirmances without written opinions in federal appeals and, in particular, Patent Trial and Appeal Board (PTAB) decisions, under Federal Circuit Rule 36 has reached a fever pitch. Recent briefs to the U.S. Supreme Court and rehearing petitions to the Federal Circuit advocate for change. Does the U.S. Supreme Court’s momentous 2024 decision casting aside the Chevron doctrine in Loper Bright Enterprises v. Raimondo now offer a path for PTAB appellants to circumvent Rule 36 altogether?