Supreme Court to Consider Constitutionality of Inter Partes Review Proceedings

By: Scott W. Doyle, Robert M. Masters, Jeffrey I.D. Lewis, Jonathan R. DeFosse

The Supreme Court this week granted certiorari in Oil States Energy Services, LLC v. Greene's Energy Group, LLC, No. 16-712, to consider “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.”  If the Supreme Court ultimately agrees that inter partes review (“IPR”) proceedings are unconstitutional, the decision could have far-reaching consequences.  In particular, the Court's decision could effectively eliminate not only IPR proceedings, but also the other post-grant administrative proceedings that the PTO conducts, such as ex parte reexaminations, post-grant review proceedings, and covered business method review proceedings.

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