Todd Dickinson and Fabio Marino with Polsinelli
In the most anticipated patent case of the year, the U.S. Supreme Court recently upheld the CAFC in Oil States Energy Services v. Greenes’s Energy Group, supporting Congress’ power to institute inter partes reviews (IPRs) in the American Invents Act’s (AIA) post-grant review process. However, they only ruled on the narrow grounds raised in Oil States petition, and declined to reach other grounds advanced by the amici against the current IPR regime. Indeed, much like the In re Bilski decision a few years ago, which narrowly upheld the validity of business method patents, only to be mostly undone a few years later in Alice, Oil States may turn out to be only a temporary stay of execution for IPRs.
Much of the opinion was an historic review of the patent right, particularly focusing on the question of whether it was a “public” or “private” right, finding that it is a “public franchise”:
