The U.S. Supreme Court granted Oil States Energy Services’ petition for a writ of certiorari seeking review of the constitutionality of post-grant review proceedings by the USPTO’s PTAB.  Oil States appealed to the U.S. Supreme Court after the Federal Circuit decided to uphold the PTAB’s invalidation of claims in a hydraulic fracturing patent.  In its petition, Oil States argued that since patents are private property rights, only federal courts under Article III of the U.S. Constitution – not executive branch tribunals – can revoke a patent grant.   Oil States also maintained that allowing the PTAB to determine the validity of a patent violates the Seventh Amendment right to a jury trial because it “takes a patent infringement claim out of the jury’s hands.”  The U.S. government, in opposing certiorari, argued that “patents are quintessential public rights” because they are derived from a federal regulatory system, meaning that AIA reviews are constitutional.

While the briefing schedule will likely be extended, under the Court’s default schedule, amicus briefs supporting the unconstitutionality of IPR would be due August 3, and briefs supporting the constitutionality of IPR would be due September 5.  Stay tuned to the Big Molecule Watch Blog for further developments.