Robert Greenspoon believed he was close. His constitutional challenge to new administrative procedures for reviewing patent validity was distributed three times at U.S. Supreme Court conferences last year before the court finally denied certiorari in October. The Flachsbart & Greenspoon partner wonders if his challenge fell one vote shy on the eight-member court.

If Tenth Circuit Judge Neil Gorsuch is confirmed to the court’s vacant seat, Greenspoon and other patent owner advocates might have one more vote for scaling back the inter partes review procedures created by the America Invents Act (AIA). Gorsuch has virtually no track record on patents, but his feelings about delegating judicial decision-making to executive agencies are clear.

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