In September, the Federal Circuit heard arguments challenging the Constitutionality of AIA Reviews. Earlier this month, the Court issued an opinion rejecting that challenge. The rejection should come as encouraging news to potential petitioners, as an affirmation would have posed a serious threat to the review power of the PTAB in deciding the validity of challenged patents.

In an opinion that also affirmed the PTAB’s invalidation of several patent claims, the Court distinguished the challenge of AIA Reviews from an 1898 challenge brought to the Supreme Court over patent reissue and the authority of the USPTO to cancel, annul, or correct patents. [1] Specifically, the Court opined that this Supreme Court opinion does not address whether Congress may grant the USPTO the authority to cancel or correct a patent, which Congress has so done since first creating ex parte reexamination proceedings in 1980.  In fact, Supreme Court precedent has affirmed the authority of Congress to delegate “disputes over public rights to non-Article III courts,” particularly to agencies whose sole authority is to execute matters of federal law.

As patents and the granting thereof are primarily public concerns, delegation by Congress of review power to the USPTO is well within the legislature’s authority. The Court discussed that this could be “odd indeed” if Congress had the authority to delegate the power to issue patents to the USPTO, an authority that is fairly indisputable, but did not have the authority to delegate the power to the USPTO to review the patents that it has issued.  In support of this assertion, the Court also cited several Federal Circuit opinions in which the constitutionality of other USPTO review proceedings was examined and subsequently upheld. 

The Court made similar arguments regarding the assertions that the right to a trial by jury under the Seventh Amendment is not satisfied by AIA Reviews. In particular, the Court cited several decisions articulating congressional authority to assign adjudication in administrative proceedings to federal agencies. Reiterating that patents are public rights, the Court concluded that patents are subject to review by an administrative agency, such that the Seventh Amendment “poses no barrier” to AIA review proceedings.