The Constitutionality of Review Is Before the Supreme Court

The America Invents Act of 2011 introduced three new avenues for third parties to question the validity of granted patents at the United States Patent and Trademark Office (Patent Office), namely covered business method review, post-grant review, and review. While all three are intended to be relatively inexpensive alternatives to litigating weak patents, review has proved so far to be the most popular and most effective, the Patent Office granting about 80% of petitions filed and invalidating about 75% of patents in which petitions have been granted. The constitutionality of review is now being challenged at the Supreme Court in . Oral hearings are set for November 27, 2017. This article summarizes the briefs filed by the parties, including the federal government, provides some context for the issue on appeal, suggests some implications of possible holdings by the Court, and proposes one possible resolution.