U.S. Patent & Trademark Office in Washington, D.C. (NLJ/Diego M. Radzinschi)
The U.S. Supreme Court has continued its recent trend to enter the foray of patent litigation by granting certiorari in Oil States Energy Services v. Greene’s Energy Group. This time the court will decide whether inter partes reviews (IPRs), an adversarial process used by the U.S. 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 when the PTO invalidates patents using this process. Since the implementation of IPRs, the PTO’s newly formed Patent Trial and Appeals Board (PTAB), has scrutinized and invalidated thousands of patents making the IPR procedure a highly effective tool when attacking issued patents (whether as a part of a patent litigation or not). Indeed, IPRs are now considered by many to have led to the devaluation of patents, while others (albeit a minority) say IPRs have increased the value of certain categories of patents, particularly those that survive the IPR gauntlet. Now the Supreme Court will decide the fate of IPRs and the impact will be tremendous regardless of how it decides the issue—it will either upend the patent system and result in a roaring comeback of the value of patents, or continue the status quo for generations to come unless Congress intervenes.
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