IPR Is Constitutional, Rules Supreme Court in Oil States

April 24, 2018

The US Supreme Court has ruled that inter partes review (IPR) is constitutional. In a 7-2 majority opinion issued on April 24 in Oil States Energy Services v. Greene’s Energy Group (2016-0712), the Court established that patents are public franchises, the adjudication of which Congress may assign to an entity other than an Article III court. The majority also ruled that IPR falls under the Patent Office’s existing authority to grant patents, since it essentially involves the Patent Trial and Appeal Board (PTAB) revisiting an existing patent grant and follows the same standards for patentability. The fact that the courts have historically decided patent validity challenges does not mean they must always do so, and procedural similarities between IPR and the courts do not amount to a violation of Article III. As a result, the Court held that IPR also does not violate the Seventh Amendment, since the proper assignment of a claim to a non-Article III tribunal necessarily allows for adjudication by a “non-jury factfinder”. On the same day as its ruling in Oil States, the Court also issued an opinion in SAS Institute v. Iancu, rejecting the PTAB’s prior practice of issuing partial institution decisions in IPRs.

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