Supreme Court Upholds Patent Office Power to Invalidate Bad Patents

["Dave Farber" <farber () gmail com>]

Begin forwarded message:

> From: Dewayne Hendricks <dewayne () warpspeed com>
> Date: April 25, 2018 at 8:01:01 AM EDT
> To: Multiple recipients of Dewayne-Net <dewayne-net () warpspeed com>
> Subject: [Dewayne-Net] Supreme Court Upholds Patent Office Power to Invalidate Bad Patents
> Reply-To: dewayne-net () warpspeed com
>
> Supreme Court Upholds Patent Office Power to Invalidate Bad Patents
> By DANIEL NAZER
> Apr 24 2018
> <https://www.eff.org/deeplinks/2018/04/supreme-court-upholds-patent-office-power-invalidate-bad-patents>
>
> In one of the most important patent decisions in years, the Supreme Court has upheld the power of the Patent Office 
> to review and cancel issued patents. This power to take a “second look” is important because, compared to courts, 
> administrative avenues provide a much faster and more efficient means for challenging bad patents. If the court had 
> ruled the other way, the ruling would have struck down various patent office procedures and might even have 
> resurrected many bad patents. Today’s decision [PDF] in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC 
> is a big win for those that want a more sensible patent system.
>
> Oil States challenged the inter partes review (IPR) procedure before the Patent Trial and Appeal Board (PTAB). The 
> PTAB is a part of the Patent Office and is staffed by administrative patent judges. Oil States argued that the IPR 
> procedure is unconstitutional because it allows an administrative agency to decide a patent’s validity, rather than a 
> federal judge and jury.
>
> Together with Public Knowledge, Engine Advocacy, and the R Street Institute, EFF filed an amicus brief [PDF] in the 
> Oil States case in support of IPRs. Our brief discussed the history of patents being used as a public policy tool, 
> and how Congress has long controlled how and when patents can be canceled. We explained how the Constitution sets 
> limits on granting patents, and how IPR is a legitimate exercise of Congress’s power to enforce those limits.
>
> Our amicus brief also explained why IPRs were created in the first place. The Patent Office often does a cursory job 
> reviewing patent applications, with examiners spending an average of about 18 hours per application before granting 
> 20-year monopolies. IPRs allow the Patent Office to make sure it didn’t make a mistake in issuing a patent. The 
> process also allows public interest groups to challenge patents that harm the public, like EFF’s successful challenge 
> to Personal Audio’s podcasting patent. (Personal Audio has filed a petition for certiorari asking the Supreme Court 
> to reverse, raising some of the same grounds argued by Oil States. That petition will be likely be decided in May.)
>
> The Supreme Court upheld the IPR process a 7-2 decision. Writing for the majority, Justice Thomas explained:
>
> Inter partes review falls squarely within the public rights doctrine. This Court has recognized, and the parties do 
> not dispute, that the decision to grant a patent is a matter involving public rights—specifically, the grant of a 
> public franchise. Inter partes review is simply a reconsideration of that grant, and Congress has permissibly 
> reserved the PTO’s authority to conduct that reconsideration. Thus, the PTO can do so without violating Article III.
>
> Justice Thomas noted that IPRs essentially serve the same interest as initial examination: ensuring that patents stay 
> within their proper bounds.
>
> [snip]
>
> Dewayne-Net RSS Feed: http://dewaynenet.wordpress.com/feed/
> Twitter: https://twitter.com/wa8dzp



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