Federal Circuit Reinforces Patent Rights as a Public Concern of a Regulatory Framework
The constitutionality of USPTO’s Inter Partes Review (IPR) mechanism has been challenged in a few district court cases over the past year. The challenge typically argues that the Patent Trial & Appeal Board (PTAB) cannot abrogate the jurisdiction of an Article III court in assessing patent validity, and/or that the PTAB prevents the 7th amendment right to a jury trial. I have largely refrained from discussing these recent cases as I found the arguments to be a bit too “creative.” This is because the very same arguments failed decades ago when patent reexamination was first introduced in the 1980s. Patlex Corp v. Mossinghoff (CAFC 1985)
The recent constitutionality arguments hoped to distinguish the earlier precedent on the basis that, unlike patent reexamination, which is examination based, IPR is adjudicative. I always found this position odd given that an unfavorable reexamination may be appealed to several adjudicative bodies, and IPR was a replacement for inter partes patent reexamination (which was also adversarial).
Today, in MCM Portfolio LLC v. Hewlett-Packard Company, the CAFC agreed, reinforcing the Patlex precedent of the 1980s.
Continue Reading CAFC Denies Strained Constitutionality Challenge to IPR Process