Earthquake Coming? Supreme Court to Weigh Constitutionality of IPRs

[We have two submissions on this potentially seismic development]

It’s no secret that patentees have been generally unhappy with both the process and outcomes of AIA reviews.  Now the Supreme Court has agreed to decide whether the entire AIA review system will be eliminated on constitutional grounds.  That case, Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, involves an IPR proceeding finding several claims of a patent were unpatentable; the Federal Circuit affirmed in a Rule 36 order.  The issue centers around whether patents are a private right—in which case they can only be nullified by an Article III court—or whether they are a public right—in which case they can be adjudicated by an executive agency.  In a different case last, the Federal Circuit declined to consider a similar question en banc.

The specific question the Supreme Court will answer in Oil States is:  “Whether inter partes revew—an adversarial process used by the Patent and Trademark Office (PTO) to analyze the validity of existing patents—violates the Constitution by extinguishing private property rights through a non-Article III forum without a jury.

The Supreme Court denied certiorari on two other questions presented, which concerned whether the IPR amendment process is inconsistent with Cuozz, and the degree to which the BRI standard requires consideration of traditional claim construction principles, including reading the claims in light of the specification.