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AIPLA Brief Argues IPRs Do Not Violate Separation of Powers or Seventh Amendment

In an August 31, 2017, amicus brief, AIPLA argued to the Supreme Court that Congress's decision to permit the Patent Trial and Appeal Board to adjudicate and if necessary cancel issued patents does not violate the separation of powers doctrine or the Seventh Amendment. Oil States Energy Services, LLC v. Greene's Energy Group, LLC, U.S., No. 16-712, 8/31/2017. 

According to the brief, Congress is authorized by Article I of the Constitution to implement the rights it creates with limited adjudication by the expert agencies charged with administering those rights. The separation of powers doctrine is not violated and the judiciary's role under Article III of the Constitution is not undermined because: Congress is the source of the rights adjudicated by the non-Article III tribunal, the adjudication is confined to issues of patentability, and the adjudication is ultimately reviewable by Article III courts. 

Distinguishing Article I Matters from Article III Matters

The brief points out that the private property attributes of patents are well established in the case law and in the Patent Act. It also acknowledges, however, that the Supreme Court in separation-of-powers cases labels the rights adjudicated by Article I tribunals as "public rights." This terminology, according to the brief, is used to identify rights created by Congress, and it has no effect on the long-standing private property attributes of patents. It is simply used to distinguish the common law "private rights" committed to the judiciary by Article III. 

The brief strongly cautions against confusing the private property status of a patent (reflecting its commodity and transferability status) with the "private rights" label used to identify the jurisdiction of Article III tribunals. The "public right" label in separation of powers cases involving patent adjudication simply designates the legislative source of a patent, which is available only upon compliance with strict statutory requirements. 

The brief also maintains that the right to a jury trial under the Seventh Amendment is not implicated by PTAB adjudications. The brief explains that Congress is authorized under Article I to design a non-jury adjudication for rights it creates that are subject to limited adjudication and that are reviewable by an Article III court. 

History of Limited PTO Review of Issued Patents

The brief also stresses that PTO review of issued patents has long been part of the statute, and that these proceedings, whether reissue, interferences, or reexamination, have all been circumscribed by detailed requirements that severely constrain the scope of review. When Congress enacted the America Invents Act, according to the brief, it created new patent review procedures that are likewise tailored to respect the separation of powers doctrine and to provide the PTAB with appropriately limited adjudicatory rights, consistent with Article III court oversight. 

Finally, the brief points out that the PTAB's consideration of patentability does not preclude the judiciary from performing its role to the extent that PTAB decisions are fully reviewable by Article III tribunals.  Moreover, the brief notes that the district courts' adjudication of patent validity in traditional patent enforcement litigation is another way Article III courts fulfill their role of providing complete relief in patent disputes. 

To read the AIPLA brief in this case, click here.