Ronald Mann Contributor
Posted Tue, April 24th, 2018
Ronald Mann Contributor
Posted Tue, April 24th, 2018 4:47 pm
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Opinion analysis: Justices rebuff constitutional attack on administrative re-examination of patents
This morning brought decisions in both of the patent cases argued in November, with the government prevailing on the constitutional question raised in Oil States Energy Services v. Greene’s Energy Group, but losing on the statutory question presented in SAS Institute v. Iancu. Both cases involve the process of inter partes review added to the Patent Act in 2012 as part of the Leahy-Smith America Invents Act. That process authorizes a petition for inter partes review by any competitor that believes that the Patent and Trademark Office erred in issuing a patent on an invention that already existed in prior art. If the PTO determines (in its sole discretion) that the petition has merit, it institutes a trial-like review process that can result, if successful, in amendment or invalidation of the patent, subject to review in the U. S. Court of Appeals for the Federal Circuit.
STRIKEFORCE HAS BEEN CHALLENGED TWICE AND WON BOTH TIMES!!!
Thomas divides the problem into two steps, first explaining why “the decision to grant a patent is matter involving public rights.” Once he establishes that point, he can argue that, because “nter partes review is simply a reconsideration of that grant, … Congress has permissibly reserved the PTO’s authority to conduct that reconsideration.”
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