53 Santa Clara L. Rev. 817 (2013)
Rethinking Administrative Law's Chenery Doctrine: Lessons from Patent Appeals at the Federal Circuit

handle is hein.journals/saclr53 and id is 883 raw text is: RETHINKING ADMINISTRATIVE LAW'S
CHENERY DOCTRINE: LESSONS FROM PATENT
APPEALS AT THE FEDERAL CIRCUIT
Amy R. Motomura*
TABLE OF CONTENTS
Introduction..................................818
I. The Chenery Doctrine    ....................     ......822
A. The General Principle   ..............     ......822
B. Subsequent Development and Divergence in
the Doctrine...................... 824
1. A Framework for Analysis     ..............824
2. Modes of Decisionmaking: Rulemaking or
Adjudication, Formal or Informal? .................. 826
3. Types of Decisionmaking: Policy, Fact, and
L aw ...................................................................826
II. The Chenery Doctrine in Appeals of Patent Denials.......831
A. Statutory Provisions for Judicial Review of
PTO Decisions      ..................... ..... 832
B. Standards of Review Applied in Federal Circuit
Review of PTO Decisions      .................. 836
C. Chenery's Declared Scope in the Federal Circuit. 838
D. The Federal Circuit's Application of the
Doctrine .............................. 842
1. Inconsistency Due to Level of Generality........843
i. Layered Law and Fact in Obviousness
Rejections ...................... 844
ii. Federal Circuit Recognition of Layered
Law and Fact.............          ........ 849
iii. Layered Law and Fact in Anticipation
Rejections    ..................   ...... 850
2. Inconsistency Due to Identification of the
Relevant Issue...........        ..  .......... 853
III. Toward a Better Chenery  ...................... 856
* Associate, Morrison & Foerster LLP. J.D., Stanford Law School, 2012.
Many thanks to Mark Lemley, Stephen Lee, and Sapna Kumar for their helpful
comments. A draft of this Article received the Stanford Law School 2012
Intellectual Property Writing Award.

817

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