Will Supreme Court kill IPRs?

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tbird

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Will Supreme Court kill IPRs?

Postby tbird » Wed Jun 28, 2017 3:09 am

This is for the patent nerds, curious to hear what people think. Does granting cert. in Oil States mean the Supremes will find the ipr process unconstitutional? If not, why would they take it up? Clarifying that they are constitutional seems like a waste of time to me but removing an effective patent killing tool does not seem like the MO of the current Court (recently not pro-patentee). This could have a huge impact on IP litigation, and firms in general. I know a lot of people at my firm specialize in post-grant work and stopped doing litigation altogether.

Citizen Genet

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Re: Will Supreme Court kill IPRs?

Postby Citizen Genet » Wed Jun 28, 2017 7:28 am

If Vegas took wagers in this, it would be saying odds are yes. Court more often grants to reverse rather than affirm. Federal circuit has a crap record at the court. And court leans to formalism that supports rigorous separation of powers. That being said, there was a similarish issue with Magistrate Judges and Article OOO about 3 years ago and the court granted ultimately to affirm. I think SOP cases like this catch the courts eye as something they ought to weigh in on. So I don't think it's a foregone conclusion.

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Roy McAvoy

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Re: Will Supreme Court kill IPRs?

Postby Roy McAvoy » Wed Jun 28, 2017 7:30 am

Citizen Genet wrote:If Vegas took wagers in this, it would be saying odds are yes. Court more often grants to reverse rather than affirm. Federal circuit has a crap record at the court. And court leans to formalism that supports rigorous separation of powers. That being said, there was a similarish issue with Magistrate Judges and Article OOO about 3 years ago and the court granted ultimately to affirm. I think SOP cases like this catch the courts eye as something they ought to weigh in on. So I don't think it's a foregone conclusion.


Agree with all this. There's no way to know at this point.

sadpandayolo

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Re: Will Supreme Court kill IPRs?

Postby sadpandayolo » Wed Jun 28, 2017 11:02 am

And how'd this impact ITC work? I haven't read the opinion thoroughly but it seems to blanket any ALJs going ham on patent validity

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PeanutsNJam

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Re: Will Supreme Court kill IPRs?

Postby PeanutsNJam » Wed Jun 28, 2017 11:17 am

sadpandayolo wrote:And how'd this impact ITC work? I haven't read the opinion thoroughly but it seems to blanket any ALJs going ham on patent validity


Is ITC common law? If not, the 7th Amendment doesn't apply, I think.

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wiseowl

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Re: Will Supreme Court kill IPRs?

Postby wiseowl » Wed Jun 28, 2017 1:58 pm

It seems odd that SCOTUS would grant cert in SAS v Lee to review Board policies in IPRs only to take Oil States 3 weeks later for the purpose of ruling the whole thing unconstitutional unless they plan to hear them together, which as far as I'm aware is not the plan.

My guess is they took the case to affirm and stop the flood of "unconstitutional" arguments, but I'm just guessing.

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deuceindc

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Re: Will Supreme Court kill IPRs?

Postby deuceindc » Wed Jun 28, 2017 2:20 pm

Although evidence bears out the CAFC's track record, I find it hard to believe that the Court will strike down IPRs as violating SOP. Patent claims are public rights - the government grants a limited monopoly to citizens as quid pro quo for disclosing inventions. Congress can channel public rights disputes to non-A.III courts, because it need not allow public rights challenges at all (pretty straight forward "greater power includes the lesser" setup). The fact that IPRs enable private citizens to challenge patent claims does nothing to change the public nature of those rights; it's similar to qui tam litigation, where the patent claim is the one asserted to be false. (There may be a better analogy than this, considering that qui tam suits are A.III territory by statute.)

Why would the Court take the case just to affirm? Their recent decisions on Congress's ability to channel claims to non-A.III courts (Stern v. Marshall, etc.) have been terse (though the truly difficult issues have dealt with jurisdiction over private rights disputes). This is a chance to (a) reaffirm Congress's ability to channel public rights cases outside of A.III, (b) delineate the territory of non-A.III tribunals, and (c) confirm that IPRs (and AIA's other inter partes challenges) are valid.



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