In MCM Portfolio LLC v. Hewlett-Packard Co., Appeal No. 2015-1091, the Federal Circuit upheld the constitutionality of inter partes review proceedings.

HP filed for inter partes review of several of the claims of MCM’s patent.  MCM argued that IPRs are unconstitutional for violating Article III and the Seventh Amendment because any action revoking a patent must be tried in an Article III court with the protections of the Seventh Amendment.  MCM based this argument onMcCormick Harvesting Machine Co. v. Aultman (“McCormick II”), 169 U.S. 606, 612 (1898), where the Supreme Court concluded that any “attempt [by the Commissioner of Patents] to cancel a patent upon an application for reissue when the first patent is considered invalid by the examiner . . . would be to deprive the applicant of his property without due process of law, and would be in fact an invasion of the judicial branch of the government by the executive.”  

The Federal Circuit rejected MCM’s constitutional argument, pointing out that the McCormick case was not an interpretation of Article III and that Congress had specifically granted to the PTO authority to correct and reconsider its own decisions.  The court noted that it had addressed and rejected a similar argument challenging the constitutionality of the ex parte reexamination statute in Patlex Corp. v. Mossinghoff, 758 F.2d 594 (Fed. Cir. 1985), modified on other grounds on reh’g, 771 F.2d 480 (Fed. Cir. 1985). The court further analogized PTO review of patents to the practice of other executive branch agencies, which often adjudicate decisions without violating Article III.