Argument preview: Justices to consider constitutional limits on adjudicatory authority of Patent and Trademark Office

Source: Scotus Blog

by Ronald Mann Contributor • Monday, November 20th, 2017

Argument preview: Justices to consider constitutional limits on adjudicatory authority of Patent and Trademark Office

It will be patent day at the Supreme Court when the justices return to the bench next Monday for their December sitting. The morning brings a pair of cases considering the “inter partes review” process that Congress added to the patent law in 2011 as part of the Leahy-Smith America Invents Act. The adoption of inter partes review implements Congress’ desire to shift a share of patent litigation away from the judicial process – criticized as slow and expensive – toward an administrative process that Congress (with considerable naiveté) expected would be swift, inexpensive and uncontroversial.

In general, inter partes review proceeds in two stages. First, competitors unhappy about the issuance of a patent file a petition asking the director of the Patent and Trademark Office to institute a review proceeding. After giving the patent holder an opportunity to respond to the petition, the PTO must decide within three months whether to institute a review proceeding; within the PTO, the decision is made by the Patent Trial and Appeal Board. If a competitor convinces the Patent Trial and Appeal Board that the PTO erred in issuing the patent, the board has the authority to invalidate the patent, subject to review by the United States Court of Appeals for the Federal Circuit.

The first case of the day will be Oil States Energy Services v. Greene’s Energy Group, a high-stakes dispute that directly challenges Congress’ constitutional authority to enact the administrative process of inter partes review. The dispute that presents those questions is remarkably pedestrian. Petitioner Oil States sued respondent Greene’s Energy, contending that Greene’s Energy was infringing a patent that Oil States holds on technology useful for preserving wellhead equipment in the oil and gas industry. Predictably, Greene’s responded by seeking inter partes review, hoping that the PTO would invalidate the Oil States patent. When the PTO concluded that the patent in fact was invalid, Oil States raised the stakes, arguing that Congress violated Article III and the Seventh Amendment when it authorized an administrative agency to invalidate the patent without affording Oil States an opportunity for a jury trial.

The Supreme Court’s consideration of Oil States is a major event because of the intertwined issues of commercial and constitutional consequence. For businesses interested in the patent process, the possibility that the court would eradicate the inter partes review process is momentous; the process has provided significant relief to the operating companies that are so frequently defendants in patent litigation and at the same time has markedly undercut the leverage that patent holders have to enforce rights under their patents. Even putting collective filings of trade associations to the side, more than 100 companies joined in amicus filings. At the same time, because the case directly challenges the statute as an intolerable congressional intrusion on authority that the Constitution allocates to the judicial branch, it raises questions that go directly to one of the most challenging problems of constitutional adjudication. More than 100 academics joined in briefs offering their advice to the justices on those questions. All told, the 57 amicus briefs are the most in any case the justices have heard this term; to put that number in perspective, it’s been more than a year since the justices faced that many amicus filings in a single case. Admittedly, those filings pale before the 90-odd filings they have for Masterpiece Cakeshop the following week, but it is a remarkable level of attention for what is at bottom a commercial dispute between competing businesses.

Please go to Scotus Blog to read the entire article.
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    But there is a common denominator in all these scandals or alleged scandals, and that would be the FBI and the actions they took or didn’t take. Indeed, it’s hard to not conclude that the agency’s actions in these events were improper if not illegal. If so, this validates the warnings by constitutionalists in the early 1900s that a federal police force would someday be used to prop up the ruling elites and attack those who dare challenge the establishment. https://spectator.org/should-the-fbi-be-abolished/

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    Serco Awarded $95 Million Patent Classification Contract with the U.S. Patent and Trademark Office
    November 30, 2015
    https://www.serco-na.com/news/press-releases/detail/12520/serco-awarded-95-million-patent-classification-contract
    and
    Serco Processes 2 Millionth Patent Application for U.S. Patent and Trademark Office
    March 19, 2013
    https://www.serco-na.com/news/press-releases/detail/2194/serco-processes-2-millionth-patent-application-for-u-s

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