The Supreme Court of the United States granted certiorari to decide whether only Art. III federal courts, not executive branch tribunals such as the Patent Trial and Appeal Board (PTAB), can decide whether a patent is invalid. Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, Docket No. 16-712 (Supr. Ct., June 12, 2017). The case is set to be considered during the October 2017 term.

The US Court of Appeals for the Federal Circuit, in an unpublished per curium decision issued on May 4, 2016 (reprinted at 639 Fed. Appx. 639), held that patents are public rights and that America Invents Act proceedings are constitutional, rejecting the petitioner’s argument that patents are private property rights, which can only be revoked by an Article III court, and not public rights, which can be revoked by a government agency.

The US government urged the Supreme Court not to hear the case, arguing that “patents are quintessential public rights” because they are derived from a federal regulatory system.

The specific issue on which cert was granted is whether inter partes review, an adversarial process used by the US Patent and Trademark Office to analyze the validity of existing patents, violates the Constitution by extinguishing private property rights through a non-Article III forum without a jury.