On November 27, 2017, the Supreme Court of the United States heard oral arguments in Oil Sates Energy Services, LLC v. Greene’s Energy Group, LLC. This much anticipated case is set to determine whether inter partes review proceedings at the United States Patent and Trademark Office (USPTO) Patent Trial and Appeal Board (PTAB) violate the Constitution by extinguishing private property rights through a non-Article III forum without a jury.
Over 50 amicus briefs were filed leading up to oral arguments in the widely anticipated and heavily scrutinized case. The amicus briefs showed a relatively even split in support for the positions of the Petitioner and the Respondent. Similarly, there appeared to be a split among the Supreme Court Justices during oral arguments. The Justices asked tough questions of all parties and it will be interesting to see how they ultimately rule.
A large portion of the questions directed to the Petitioner, Oil States, centered around whether ex parte reexam and inter partes reexam proceedings are constitutional, and, if so, how inter partes review is distinguishable. Counsel for Oil States conceded that ex parte reexam and inter partes reexam are constitutional, calling out that those proceedings are examinational and not adjudicational in nature. In other words, those proceedings are between the USPTO and the Patent Owner, whereas inter partes review proceedings are between two private parties.
Questions for the Respondent, Greene’s Energy, included a focus on due process, whether patents are a public or private right, and whether a patent owner’s rights could ever vest due to reliance on the patent’s presumed validity. Lastly, counsel on behalf of the federal government faced questions on the USPTO’s ability to decide infringement and concerns of panel stacking at the USPTO.
While it is dangerous to speculate on the ultimate ruling based merely on oral arguments, it does appear unlikely that the Court will rule unanimously.
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