On June 19th, 2017 patent holder, Cascades Projection LLC, urged a Federal Circuit panel to decide whether the America Invents Act’s inter partes reviews are constitutional. An Inter partes review is an adversarial process used by the Patent and Trademark Office to analyze the validity of existing patents. Cascades Projection LLC argued that the United States Supreme Court’s decision in June 2017 to decide the question means that the panel can decide the question as well. The Supreme Court granted writ of certiorari last week for the separate case of Oil States Energy Services v. Greene’s Energy Group, on whether inter partes review violates the United States Constitution by extinguishing private property rights through a non-Article III forum without a jury.
Cascades states that the America Invents Act is in violation of separation of powers under the United States Constitution by granting the Patent Trial and Appeal Board the authority to find patents invalid. Back in February of 2017, Cascades attempted to appeal to the Federal Circuit in hopes they would reconsider the precedent ruling in MCM Portfolio v. Hewlett-Packard, which states patents are public rights. Three months later, the court denied to hear the case. In response to denying the case, three United States Circuit Judges agreed that the ruling in MCM Portfolio v. Hewlett-Packard was valid.
Oil States Energy Services v. Greene’s Energy Group is arguing that federal courts only, and not executive branch tribunals, can decide whether a patent is valid or not. They continue to argue that patents are private property rights and not public rights, which under Article III of the United States Constitution, can only be revoked by a federal court. We will post an update when the case is decided by the United States Supreme Court.
