The BPLA Files Brief in

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On June 12, 2017, the Supreme Court granted certiorari in on the question of “[w]hether 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.” Petitioner Oil States, whose patent claims had been found unpatentable during the underlying review (IPR), argued that the IPR process is unconstitutional because it violates both Article III and the Seventh Amendment. According to Oil States, patents are private property rights that do not fall within any of the previously enumerated public-right exceptions, and thus they must be adjudicated in an Article III court (and not by an Article I tribunal, such as the Patent Trial and Appeal Board (PTAB)). Oil States further argued that IPRs violate the Seventh Amendment’s guarantee of a jury trial in “suits at common law” because patent validity questions have been traditionally tried to juries as far back as 1791 in English courts. Respondent Greene’s submitted that IPRs are constitutional. Greene’s argued that patents are public rights that fall within a public-right exception, as patents are derived solely from a federal regulatory scheme. Greene’s further argued that there was no violation of the separation of powers, because Congress created the scope of patent rights, and as such, Congress was within its constitutional authority to create a procedure for reviewing and revoking patent rights. Moreover, Greene’s argued that IPRs are not an exercise of judicial power and do not threaten the institutional integrity of the judiciary. The United States’ Brief for the Federal Respondent similarly argued that IPRs are consistent with Article III and the Seventh Amendment. The United States’ position is that IPRs resolve a public right that is integrally connected to the federal patent scheme and do not diminish the authority of Article III courts. Because IPRs are consistent with Article III, the United States argued that the Seventh Amendment does not independently pose a constitutional problem. Moreover, because IPRs provide only an equitable remedy (the cancellation of a patent), they do not violate the Seventh Amendment. The BPLA filed an brief in support of neither party. In its brief, the BPLA stated that, contrary to the positions of the parties and other amici, patents are neither purely private nor purely public rights. While the right to exclude others from using patented technology is a private right, the process for obtaining a valid patent is part of an extensive regulatory scheme, and therefore, “involves public rights.” Because obtaining a valid patent involve pubic rights, Congress can properly assign the adjudication of patent validity to an administrative agency without violating Article III or the Seventh Amendment. Additionally, BPLA raised the important role of IPRs in maintaining a strong and reliable patent system, as contemplated by the Constitution. A patent represents a bargain between an inventor and the public. Because the Constitution contemplates that the public’s interest is paramount in the patent bargain, the public needs an efficient mechanism that is not cost prohibitive by which it can challenge weak patents and restore the equitable nature of the bargain made with inventors. The BPLA submitted that post-grant challenges, including IPRs, provide that mechanism. 21 briefs were filed in support of Oil States. 10 briefs were filed in support of neither party. briefs in support of Greene’s are currently being filed. Oral argument took place on November 27, 2017. The transcript is available .