The Supreme Court has granted a writ of certiorari challenging the constitutionality of inter partes review proceedings conducted by the United States Patent and Trademark Office under the America Invents Act.  The Court’s ruling in this matter, especially if it holds inter partes reviews to be unconstitutional, could massively destabilize the patent law system by casting into doubt an administrative regime that has diverted thousands of patent disputes from the federal court system, as well as the many hundreds of decisions invalidating patent claims so far yielded by that regime.

Post-issuance proceedings under the AIA, through which the validity of patents can be challenged before the Patent and Trademark Appeal Board, have been popular since their inception following the AIA’s enactment in 2011. Through May 2017, the PTAB had received nearly 7,000 petitions for AIA post-issuance relief, including more than 6,000 petitions for inter partes review, issued more than 1,600 final decisions, and invalidated some or all of the challenged patent claims in approximately 1,300 of those.

The petition, filed by Oil States Energy Services, asserts that AIA inter partes review proceedings violate the Constitution by allowing the PTAB, an executive branch tribunal rather than an Article III federal court with attendant jury trial rights, to extinguish existing patent rights.  The Supreme Court’s grant of certiorari follows its rejection of three similar petitions last year.

You can find the Supreme Court’s docket for Oil States Energy Services, LLC v. Greene’s Energy Group, LLC here.