Industry Reaction to SCOTUS Granting Cert. in Oil States

By Gene Quinn
June 13, 2017

Yesterday the United States Supreme Court sent a shockwave through the patent community, not as the result of a new opinion but instead as the result of a decision to grant certiorari in Oil States vs. Greene’s Energy Group, et al. This dispute is between the parties to an inter partes review (IPR) proceeding conducted by the Patent Trial and Appeal Board (PTAB). The issue the Supreme Court will decide is whether it is Constitutional to have an Article I tribunal extinguish patent rights. See Supreme Court to decide if IPR is Constitutional.

Depending upon whether you are a technology user or a technology innovator your opinion of what the Supreme Court should do with respect to Oil States will vary greatly. In order to get instant perspective on this matter we reached out to a panel of industry insiders for their take on the Supreme Court’s decision to grant cert. in Oil States. The perspective of our insiders follows.

As for my take, while I am normally quite skeptical of the Supreme Court getting involved in patent matters, the truth is any decision by the Supreme Court in Oil States simply cannot make things any worse for patent owners than they already are. Patents rights are currently be extinguished by an Article I tribunal that fundamentally refuses to provide even a modicum of due process. The PTAB refuses to consider evidence timely submitted, they refuse to allow amendments despite the statute saying there is a right to amend, they refuse to issue final decisions on all the claims challenged, they make up their own standards rather than follow statutory tests, there are no judicial rules of ethical conduct for PTAB judges, PTAB judges decide issues where there are serious conflicts of interest, and much more. Therefore, things could hardly get any worse, yet Oil States presents the very real possibility that the Supreme Court will rule that post grant proceedings at the USPTO violate the Constitution. The lingering question I do have, however, is why would the Supreme Court accept Oil States and SAS Institute v. Lee, another IPR related case that asks whether the PTAB must issue a final written decision on all claims challenged, if the Court were leaning toward finding IPRs unconstitutional?

In any event, here is the take from our expert panel.

 

Russell Slifer
Former Deputy Director of the USPTO

Clearly the Supreme Court is not done with its intellectual property obsession. By granting certiorari in Oil States vs. Greene’s Energy Group, et al. the Court has agreed to address the questions of constitutionality of post grant reviews, the amendment process implemented by the USPTO, and how the USPTO applies the broadest reasonable interpretation to claims. Some commentators believe that this is a good sign for patent owners and the end of IPR’s. I don’t anticipate, however, that the Court will shift in a pro-patent direction and gut a cornerstone of the AIA. This will most likely be one of the rare cases where the Supreme Court substantially affirms the CAFC.

The Petitioner has based much of its constitutionality position on McCormick Harvesting Mach. Co. v. Aultman & Co., 169 U.S. 606 (1898) where the Court said in 1898 that “the Patent Office had no power to revoke, cancel, or annul” an issued patent. The Court may, most likely, limit McCormick to the narrow facts of the then reissue procedure. The USPTO did not have a revocation power at that time to rely upon, but does now. It is more probable that the Court will not extend McCormick to the broader proposition that Congress cannot grant the USPTO jurisdiction over an issued patent (particularly to post-AIA issued patents).

I hope that the USPTO does not wait for the Supreme Court decision to move forward with needed changes to the IPR proceedings. My recent article on IPWatchdog provides a starting point for IPR changes that will preserve the integrity of the patent system.

Russell Slifer served as Deputy Director of the United States Patent and Trademark Office during the Obama Administration. Prior to that he was Chief Patent Counsel for Micron. He has also served as a Board Member to the Intellectual Property Owners Association and as a President of the Association of Corporate Patent Counsel.

 

Matt Levy
Patent Policy & Litigation Consultant

Once again, the Supreme Court is taking on a case with a potentially massive impact. Oil States petitioned based on the Seventh Amendment right to a jury trial; it argued that patents are a private right, and therefore the Seventh Amendment applies to all validity challenges. If Oil States wins, it’s hard to see any reexamination or post-issuance review procedure surviving. Besides making it incredibly difficult and expensive to challenge patents, what would that mean for patents that have already been invalidated by those procedures? Do they spring back to life? It’s like Pet Sematary, but for patents. The chaos would be incredible.

The Supreme Court, however, hasn’t given any signs recently that it’s sympathetic to the private rights position. It treated Cuozzo as a fairly straightforward administrative law case, and Lexmark has some language in the opinion that seems to suggest that patents are not property rights in the usual sense. I’m inclined to think that the Court has no interest in setting fire to post-issuance review procedures. But who knows?

I’d love to know why the Court granted this question. If I had to guess, I’d say that it presents a really interesting Constitutional question in a fairly clean way. Or maybe it offers the chance to deal with the never-ending challenges to the AIA reviews once and for all.

Regardless, this case will make for an exciting autumn!

Matt Levy is the former Patent Counsel at the Computer and Communications Industry Association (CCIA). He is now a consultant on patent policy issues and patent litigation.

 

Charles R. Macedo
Amster, Rothstein & Ebenstein LLP

There is little doubt that the creation of Inter Partes Review (IPR) proceedings as part of the American Invents Act (AIA) — and to a lesser degree Post Grant Reviews (PGR) and Covered Business Method Reviews (CBM) — have had a profound impact on U.S. Patents. In these proceedings, an Article I administrative tribunal, the Patent Trial and Appeal Board (PTAB), has become the de facto arbitrator of whether a previously issued patent claim survives or dies.

In the next Term, the Supreme Court will hear two important cases revolving around these new proceedings: SAS, where the Court will likely cut back or eliminate Chevron deference to an administrative agency; and Oil States, where the Court will address the fundamental question of whether a patent, once issued, is a “private right” or a “public right.” If the Federal Circuit maintains its zero batting average of recent times at the Supreme Court, it is forseeable that the Court will reverse in both instances, finding that the PTAB needs to finish completely whatever it starts, but in any event shouldn’t be the entity that gets to hear the dispute.

Charles Macedo is a partner with Amster Rothstein & Ebenstein LLP. He litigates in all areas of intellectual property law, including patent, trademark and copyright law, with a special emphasis in complex litigation and appellate work.

 

John DiMatteoJohn DiMatteo
Partner, Holwell Shuster & Goldberg LLP

While it is certainly surprising that the Supreme Court granted certiorari in this case, I expect the Court will conclude that a patent is a “public right” not a “private right,” and affirm the Federal Circuit’s prior decisions holding that Congress had the authority to establish Inter Partes Review before the Patent Trial and Appeal Board. If the Court rules for the petitioner—Oil States International—patent law and procedure will fundamentally change, and most likely not for the better.

John DiMatteo tries patent matters before federal courts and the International Trade Commission. He also handles Inter Partes Reviews (IPRs) and related complex U.S. Patent Office proceedings.

Cy Morton
Robins Kaplan LLP

 After denying several other petitions on this issue, the Supreme Court finally granted cert. on the constitutionality of AIA trials by the PTAB. While the merits of the issue will be hotly debated, parties, courts and the PTAB will all have to decide what to do now while the case is pending.

Patent owners may want to consider making the same argument in order to ensure it is preserved, although companies with ongoing matters on both sides of the issue may be in a quandary.  As patent owners, they will want to save their patents from invalidation at the PTAB if the Supreme Court strikes down the system. But, they may not want to say publicly that IPRs are unconstitutional, especially if their defense matters are more critical to the company.

This is an issue the Supreme Court needed to resolve, but it creates even more uncertainty for litigants in the meantime.

Mr. Morton is a trial attorney whose complex litigation practice has included an emphasis on patent litigation since 1998. Mr. Morton is also the Chair of the Patent Office Trials Group at Robins Kaplan LLP.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 47 Comments comments.

  1. Night Writer June 13, 2017 10:29 am

    The Congress has the power to create an Article III court to deal with patent validity, so I don’t think this is as epic as some would make it. There is no doubt that the current system is incredibly unfair and ridiculous. Death squads is a mild term for the patent judges.

    But, again, it is not as if the Congress couldn’t set up a fair procedure that didn’t rely on the average dist. ct.

  2. Bluejay June 13, 2017 11:00 am

    My view is that SCOTUS more or less dealt with a very similar issue with Northern Pipeline and bankruptcy law. The then current bankruptcy law was found to be unconstitutional and Congress had to rewrite it. Same thing here.

  3. Anon June 13, 2017 11:13 am

    Same comment as previously supplied to the statement of “they refuse to allow amendments despite the statute saying there is a right to amend

    No such right to amend is included in what Congress set forth.

  4. Bluejay June 13, 2017 11:15 am

    Anon:

    I don’t think Congress intended to eliminate due process rights.

  5. Anon June 13, 2017 11:20 am

    A possible answer to:

    Q: why would the Supreme Court accept Oil States and SAS Institute v. Lee, another IPR related case that asks whether the PTAB must issue a final written decision on all claims challenged, if the Court were leaning toward finding IPRs unconstitutional?

    A: the Court does not integrate separate cases into one master case. Each of the separate cases has their own path, their own parties, and their own resolutions.

    Yes, the fact may occur that a resolution in one case may wipe out another. In such an instance, the Court may easily employ a “remand in view of” one case in view of the other.

    For example, the Court may deem that both cases SAS and Oil States each separately tough on genuine concerns that – separately – deserve the Court’s attention.

    There is nothing odd about that.

    What may happen (and likely should happen) is that the Court will schedule, hear and decide on the case that may obviate the other first, and then turn around and remand the second – basically putting the second on hold pending what Congress does with the first.

    In fact, by taking on both cases, the Court has signaled Congress that in any “do over” from Congress, Congress may very well want to try to write a better law to also cover the issue in the second case.

  6. Anon June 13, 2017 11:28 am

    Bluejay @ 4,

    The intention is meaningless if the result of what they actually did IS what they actually did.

    I am not aware of any instance where a law deemed unconstitutional was intended by Congress to BE unconstitutional.

  7. Bluejay June 13, 2017 11:34 am

    Anon: Maybe the people in Congress did what their campaign contributors and lobbyists wanted and they were not too concerned with due process or the details.

  8. Valuationguy June 13, 2017 12:15 pm

    I see the main reason that the SAS Institute v Lee cases was accepted was due to Gorsuch’s opinions against the admin state and Chevron deference in particular. Because of this…the issue the Court wants to address in this particular case won’t necessarily be disposed of by an Oil States reversal/remand….which of course is slightly behind it in an case.

    The main reason you have seen the Court focus more recently on patent issues is that they are of growing importance to business…the true masters. Individual civil liberties have received pretty short shrift by the SCOTUS in recent years…allowing the fears generated by the neocons and the media to let the Congress pass multiple laws which EFFECTIVELY put every citizen under a police state even if they have nominal right of redress (assuming they can pay the price!).

  9. Feeling depressed... June 13, 2017 12:43 pm

    As I review this issue more and more and the recent history of the SCOTUS being fairly anti-patent, I can easily see them saying the enforcement (infringement) is a private right, but invalidity is a public right. Thus, not only is the IPR process constitutional, but you don’t get a jury trial on invalidity.

    Recall how sure so many people were that Roberts was going to invalidate the ACA and then saved it? I have this bad feeling that is what is about to happen here.

  10. Ray June 13, 2017 12:43 pm

    As I review this issue more and more and the recent history of the SCOTUS being fairly anti-patent, I can easily see them saying the enforcement (infringement) is a private right, but invalidity is a public right. Thus, not only is the IPR process constitutional, but you don’t get a jury trial on invalidity.

    Recall how sure so many people were that Roberts was going to invalidate the ACA and then saved it? I have this bad feeling that is what is about to happen here.

  11. Anon June 13, 2017 1:01 pm

    Blue jay,

    Again at 7, your comment is just not meaningful to the legal question.

    Not even Congress, the correct branch of the government authorized by the Constitution to write the statutory law that is patent law, may transgress other Constitutional protections.

    It just does not matter if the law is as they intended, that they did not intend to violate other Constitutional protections, or if they were heeding the voi€e$ of their “most vocal” (juristic) persons as constituents.

  12. Anon June 13, 2017 1:51 pm

    Ray @ 9,

    Such a “partially pregnant” situation does not resolve the underlying matter.

    It appears that you want to treat some the sticks in the bundle of property rights in one manner and other sticks in another manner.

    The question does not resolve that way. The question instead is what nature is the bundle of sticks.

    The problem you have with attempting to be “a little bit pregnant” is that other Constitutional protections inure at patent grant because it is the full bundle that earns the distinction of being property.

    Congress did not state that they were changing that with the changes of the AIA.

  13. Ray June 13, 2017 2:11 pm

    @Anon,

    I guess that is the question I’m posing. Can enforcement be a private right and a challenge to the validity be a public right? If 103 is a question of law, which the Court has stated before, must a jury hear validity based on 103? If not, why can’t the PTO handle 103 challenges?

    FYI, my personal bias is for the Court to rule against the PTO. I just don’t get the feeling that the Court is going to strike down the entire IPR process. Just my gut feeling.

  14. EG June 13, 2017 4:33 pm

    Hey Gene,

    Unless SCOTUS comes up with a new, convoluted theory for side-stepping McCormick Harvesting, as well as what 35 USC 261 EXPRESSLY says patent rights are (“personal property”), IPR proceedings, CBM proceedings, and the like in the AIA cannot be constitutional in view of the 5th Amendment “due process” clause on “takings.” Indeed, as has been speculated elsewhere, the reason SCOTUS is taking Oil States’ petition (versus denying those of MCM Portfolio and Cooper v. Lee) is because Gorsuch is now on the High Court bench, breaking was previously a 4-4 tie-how else can you explain SCOTUS accepting Oil States’ petition in view of DOJ telling them not to?

  15. Just being helpful June 13, 2017 4:43 pm

    @EG,

    For the SCOTUS to grant Cert, you only need four Justices. So, maybe they were at 5-3 against and now they are 5-4 against with Cert granted?

  16. Edward Heller June 13, 2017 5:47 pm

    Matt, as for the reason the Supreme Court took Oil States, which was, after all, a Rule 36 judgment, and which essentially repeated the arguments we presented in MCM Portfolio LLC last year, rather than MCM itself, I believe this can be fully explained as related to the composition of the court: Last year it was eight; and this year it is nine. There appears to be at least four justices in favor of constitutionality. (We all know who they are.) Thus taking the case last year would have ended in a 4-4 deadlock.

  17. Edward Heller June 13, 2017 5:49 pm

    Russ, McCormick Harvesting might be distinguished as you suggest, but if patent validity has a Seventh Amendment right to a jury trial, Congress has no power to authorize the trial of patent validity in a forum where a jury trial is not available.

  18. Edward Heller June 13, 2017 5:59 pm

    Cy, it would be interesting, would it not, if, after Supreme Court holds the IPR statute unconstitutional, the Federal Circuit would not vacate prior cases or reinstitute canceled claims that result from IPRs on the basis that the patent owner waived his constitutional rights by not asserting them in a timely manner.

    How do you read Wellness Intern. Network, Ltd. v. Sharif, 135 S. Ct. 1932 (2015) on this point?

    https://scholar.google.com/scholar_case?case=1726045641934009746&q=WELLNESS&hl=en&as_sdt=2006

  19. Night Writer June 13, 2017 6:33 pm

    I wonder how IPR practice is going to change as a result of this. Do you burn $400K hoping this comes out your way or do you hold off?

  20. Night Writer June 13, 2017 6:34 pm

    Let’s hope you have it right Edward. Now if we can only get you to fight to overturn Benson and Alice, then we might have a patent system again.

  21. Curious June 13, 2017 9:54 pm

    I wonder how IPR practice is going to change as a result of this. Do you burn $400K hoping this comes out your way or do you hold off?
    That is a really interesting question. Any halfway-intelligent attorney is going to preserve the issue as to the constitutionality of the IPR system. As such, even if they lose, they’ll appeal the matter to the Federal Circuit. If you requested an IPR today, that could easily be 1 1/2 to 2 years down the road before the Federal Circuit issues a decision. At that point, Oil States should be long decided by the Supreme Court.

    If you are of the opinion that the Supreme Court didn’t granted cert just to affirm the status quo, then filing an IPR today just doesn’t make sense because you won’t get the major benefits of the IPR. Sure, you can develop (pre-trial) some of the arguments in the IPR, but you have a different claim construction standard and a difference burden of proof. Its an awfully expensive procedure to get a peek at the opponents hand before litigation. This may be worthwhile tactic for some well-heeled defendant — drag out litigation and bleed the plaintiff dry — but this doesn’t work for a lot of defendants.

    If I’m inside counsel, I’m taking a long, hard look at the cost effectiveness of an IPR as the risk/reward profile could be drastically changing.

  22. Night Writer June 14, 2017 9:21 am

    @21 curious: So, perhaps a drop in the number of IPRs over the coming months.

  23. Night Writer June 14, 2017 9:22 am

    Actually, I guess we will see by the number of IPRs what the IP community thinks of the chances of IPRs being held Unconstitutional.

  24. Ray June 14, 2017 9:56 am

    @21 – For slower courts, an IPR would still have value as an advisory opinion regardless of the constitutional effect of the final decision.

    Additionally, it’s not so clean cut that the entire review would be held unconstitutional. For example, the subject matter and CBM issues seem to be issues of law that are reviewed by the Art III Fed Cir. Why would this be unconstitutional just because you have a right to a jury trial for 102 issues?

    There will be some additional litigation for sure that spawns out of this unless the Court says there is no 7AM right…

  25. Night Writer June 14, 2017 12:14 pm

    @24 Ray sounds like someone writes IPRs.

    I think there is a good argument that Alice is Unconstitutional.

  26. Ray June 14, 2017 12:49 pm

    @25 Night Writer,

    Certainly not me. Just commenting…

  27. Anon June 14, 2017 12:54 pm

    Ray,

    I do hope that you realize that “making IPR decisions by the USPTO” into an advisory opinion is not an option in this matter.

    Such would require a redraft of the law by Congress, and is quite outside of the authority of either the judicial or executive branches.

  28. Curious June 14, 2017 5:02 pm

    an IPR would still have value as an advisory opinion regardless of the constitutional effect of the final decision
    Different claim construction (BRI versus “correct”). Different burden of proof (preponderance versus clear and convincing). Once you’ve thrown those two differences into the mix, the advisory value of a decision by the PTAB as to patentability becomes highly questionable.

    Unless the PTAB was restructured to issue decisions using the same standards that would be used in a District Court, then I would argue that PTAB “advisory” opinions are worthless.

  29. David June 14, 2017 5:36 pm

    “Russ, McCormick Harvesting might be distinguished as you suggest”

    NED WHAT ARE YOU TALKING ABOUT?????

  30. Ned Heller June 14, 2017 5:52 pm

    David, I agree that McCormick Harvesting was not based upon lack of statutory authority and the Federal Circuit simply pulled that out of thin air. What I him trying to argue is an arguendo.

    A fundamental flaw in the Federal Circuit case other than its analysis of McCormick Harvesting is that one can have a constitutional right to a trial by jury but even so Congress can transfer the trial of such a right to an administrative proceeding where a jury trial is not available. That is under nonsense. This holding basically states that Congress cannot abrogate constitutional rights.

  31. Anon June 15, 2017 9:30 am

    What I him trying to argue is an arguendo.

    Not at all clear Ned – I would advise NOT engaging in that type of interchange in this type of forum.

  32. Edward Heller June 15, 2017 9:34 am

    Anon, point taken. I was surprised that David’s reaction. My apologies.

  33. Edward Heller June 15, 2017 4:36 pm

    EG@14, the line that patents are property sounds good, and of course invokes the Taking Clause, but determination of validity is not a taking. Just saying that patents are property, without linking that statement to a constitutional requirement to adjudicate validity in a court of law, is mere soundbite.

    McCormick Harvesting did say that the basis for its holding was that patents are property and for that reason their validity had to be litigated in a court of law. But the Supreme Court never linked that holding to any provision of the constitution or explained why the validity of private property rights could only be litigated in a court of law.

    And therein lies the problem with McCormick Harvesting.

    On the other hand, Murray’s Lessee does provide the constitutional rationale; as does the Seventh Amendment. Murray’s Lessee held that matters litigated in the courts of England: common law, equity and Admiralty; must still be litigated in the Article III courts. The Seventh Amendment adds to this the requirement of a right to a jury trial if the issue involves a legal right that was litigated in the common law courts.

    Clearly, patent validity was litigated in the courts of England, either in the common law courts as part of infringement cases, or at Kings Bench or the Petty Bag (Chancery), both common law courts. In every case, disputed facts were tried to a jury.

    Thus, indisputably, under authority of both Murray’s Lessee and under the Seventh Amendment (Parsons v. Bedford, and ex part Wood & Brundage (actions to revoke patent have a jury trial right)), a patent owner has a right to a trial in a court of law and to a jury.

    It is important to understand the constitutional principles here so that our thoughts and arguments are clear and not muddled by constitutional irrelevancies.

  34. Anon June 16, 2017 10:52 am

    Mr. Heller,

    Based on conversations that I have had with you (and on conversations that I have seen you have with others), your view of what is and what is not “constitutional irrelevancies” is not persuasive.

    I would suggest that you first follow your own advice – which would mean that many of your own favorite topics and aims of advocacy would need to drastically change.

  35. Edward Heller June 16, 2017 2:59 pm

    Anon, the only constitutional principle involved with “property” is the Takings Clause.

    From my recollection of the constitutional debate prior to the AIA about IPRs, it concerned the Takings Clause. But validity is not taking, and never has been. Therefor, insistence that patents are property without more gets one nowhere in the constitutional analysis regarding Art. III and the Seventh Amendment.

  36. Anon June 16, 2017 4:37 pm

    Mr. Heller,

    You have in the past completely misunderstood simple property law aspects such as “sticks in the bundle of property rights.”

    Further, you have in the past completely misunderstood Constitutional patent matters.

    I repeat that you were probably not chosen to be a champion for this matter based on your lack of primary understanding of these things – and that such was probably a good thing.

  37. Edward Heller June 16, 2017 5:06 pm

    anon, don’t know if I have seen anybody post an agreement with you on your bundle of stick argument. However, I can count four Justices of the Supreme Court who seem to agree with me.

  38. Ray June 16, 2017 5:13 pm

    I’m not convinced vadidity and infringement rise or fall together.

    Inequitable conduct isn’t tried to the jury and it’s the analog of fraud.

    Can’t the Court determine validity is an issue of law wherein any jury involvement is simply advisory to the Court? Hasn’t the SC already stated obviousness is a question of law albeit based on factual questions.

    If validity is a question of law regarding whether the patent office properly issued it, why can’t the very agency that issued it reconsider its actions in doing so?

    I wouldn’t bet on the SC necessarily taking one polar view or the other.

    I’ll admit, as I’ve stated before, I am biased against IPRs, but I’m not going to count chickens based on what I know. I’ve guessed the SC wrong many times. Who hasn’t.

  39. Ray June 16, 2017 5:31 pm

    Further, which amendment hasn’t the SC found some exception to? Also, the Court has found rights in the penumbra. Half the Court is fairly results oriented.

    Anyone that thinks the Court must do one thing or another may want to read a few more cases.

    Just my 2 cents.

  40. Edward Heller June 16, 2017 5:34 pm

    Ray, both the right to have an issue tried in a court of law and the 7th Amendment depend solely on whether such an issue was the stuff of issues tried in the courts of law, equity or Admiralty in England prior to 1789, and if the matter were tried in courts of law, as were patent validity, they have a right to a trial by jury.

  41. Ray June 16, 2017 5:50 pm

    Ed, I hear ya. It’s also ~230 years since the 7AM was passed and the issue is not settled regarding patents. Perhaps some thought so in 1898, but the FedCir hasn’t thought so.

    Again, I hope you are correct because it will benefit me greatly.

    I also recognize, as you may, that all 9 Justices agree with our view.

  42. Ray June 16, 2017 5:51 pm

    *not all 9 agree.

  43. Anon June 16, 2017 7:03 pm

    However, I can count four Justices of the Supreme Court who seem to agree with me.

    Doubtful.

    Very doubtful – especially on matters of import, matters the Court gets right, and perhaps most importantly, the combination of the two.

  44. Night Writer June 17, 2017 10:45 am

    Please Gene. The juxtaposition of Russ with a dog’s a$$ like Matt is offensive. The first is an honorable man, the second is a paid propagandist that would burn down the Capitol if he thought it would put money in his pocket. Maybe you could put up a separate section with “Opinions from Purchased People,” or “Paid Propagandists.” It offends common decency to put someone like Matt near respectable people.

  45. Edward Heller June 17, 2017 3:26 pm

    Ray, the very first time the issue ever came up at the Federal Circuit, that court held that patent validity had a Seventh Amendment right to a trial by jury. However, even its discussion of the how Chancery was structured in England was underwhelming.

    For your education, 4th Part, Coke Inst., Cap. 8, 79 — available on Google Books.

    The writ scire facias was filed on the common law side of Chancery, but jury trials were conducted at King’s Bench. For the purposes of conducting jury trials, the two courts were considered one.

    Chancery also had an equity side, but that side had nothing to do with writ scire facias.

  46. Daryl Josephson July 2, 2017 6:20 am

    While unlikely, consideration of Congressional Action tending not to achieve purported goals combined with the USPTO generally and PTAB especially demonstrating the dangers of failing to adhere to established standards, deliver consistency, provide clear articulation, etc. & the resulting diminishing of the US Patent System could be helpful.

    Consider the advents of early publication, first-to-file & inconsistency between standards utilized, consideration/review clarity & Art Unit outcomes. Now add uncertainty/lack of presumption of validity, inability to amend, lack of clear explanation, inability to amend… maybe, and so on as issues are removed to the PTO and the PTO effectively takes its second bite at the apple.

    My apologies for diverging, but at some point, Administrative Agency purview perhaps SHOULD be reviewed also according to the way in which its authority is exercised and the impact of its exercise. That is, perhaps even an arguably constitutional authorization should further be judged against the quality/suitability of the Legislation and the authorized Agency’s ability/record regarding implementation… particularly with such difficult subject matter.

  47. Anon August 6, 2017 5:07 pm

    So who will represent the micro-entitiy, single patent owner of a CBM, with no economic means of surviving an IPR?

    The reality today, is we are effectively denied exercise of property rights.