In Oil States Energy Services, LLC v. Greene's Energy Group, LLC, the Supreme Court considered "whether inter partes review- 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 held that Inter Partes Review (IPR) proceedings (35 U.S.C. 311-319) before the Patent Trial and Appeal Board (PTAB) do not violate Article III or the Seventh Amendment of the Constitution. In short, Justice Thomas for seven of the justices reasoned that "the decision to grant a patent is matter involving public rights" and "inter partes review is simply a reconsideration of that grant ... Congress has permissibly reserved the PTO's authority to conduct that reconsideration."
Many commentators predicted inter partes review (IPR) would be held constitutional. A more tricky prediction is how much the USPTO's new regulations and policies will level the IPR playing field for patent owners in the future.
Copyright © 2018 Robert Moll. All rights reserved.
