Jury Trial/Article III Challenges to PTAB Expectedly Fail at High Court
Yesterday, the Supreme Court of the United States denied certiorari in two cases challenging the constitutionality of AIA trial proceedings. MCM Portfolio LLC v. Hewlett-Packard Co. et al., and Cooper et al. v Lee et al. These cases largely presented the same constitutional challenge as that lodged against the USPTO’s patent reexamination system in the 1980s, in Patlex Corp. v. Mossinghoff, 758 F.2d 594 (Fed. Cir. 1985). Since that time, patent validity has been found to fall within the “public rights exception,” permitting adjudication before non-Article III tribunals.
These more recent cases hoped to distinguish reexamination from AIA trials on the ground that reexamination was not adjudicative, but examinational. Of course, after Cuozzo, it has been clear that this line of reasoning was certain to fail.
Now that opponents are running out of options to unhinge the PTAB, attention may shift to legislative efforts and/or rule based modifications coming out of the PTAB.
For a discussion of expected rule changes and efforts in this regard, don’t miss the November 15th program, IAM Patent Law & Policy 2016. Speakers this year include former USPTO Director David Kappos, current USPTO Director Michelle Lee, PTAB Chief Judge David Ruschke, former CAFC Chief Judge Paul Michel, and many more.