Patent Trial and Appeal Board Procedures for IPR Fail to Satisfy the Fifth Amendment

By Neal Solomon
October 19, 2017

EDITORIAL NOTE: This article is the sixth installment of an 8-part series exploring the constitutionality of the PTAB under the public rights doctrine. To begin reading from the beginning please see: Patent Review in an Article I Tribunal is Unconstitutional.

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“The PTAB trial is itself very abbreviated. While a federal district court trial involving patent infringement takes several days or weeks, PTAB “trials” – which consist merely of attorney oral arguments – take a few hours.”

The due process clause of the Fifth Amendment addresses the requirement for due process to support individual rights and liberties: “No person shall . . . be deprived of life, liberty, or property, without due process of law . . .” This clause governs adjudication of disputes in the courts between private parties involving private property and establishes the legitimate constraints of fair procedures for both judges and juries. Due process is an essential condition for a fair proceeding involving a matter in which property rights are in dispute. Unfortunately, there is no interpretation of PTAB procedures under which due process applies. PTAB omits due process and is fundamentally unfair. As a consequence, the PTAB conclusions, and the structure and process of PTAB determinations, are unconstitutional.

Objectives and Methods of the America Invents Act

The origins of PTAB rules lie in the AIA. The statute specifies a set of procedures for the PTO to administer IPRs or PGRs in order to review patents. The focus of review in IPRs is novelty (35 U.S.C. § 102) and non-obviousness (35 U.S.C. § 103). The main impetus for this focus lies in the narrative of big tech companies that the PTO grants patents of low quality that require a second review with substantial resources. These assertions, however, lacked evidence.

Interestingly, inter partes means “among parties.” Patent critics maintain that since a patent grants a monopoly, the public must be protected from an improper monopoly. However, note that the public is rarely involved in IPRs. Almost all IPRs are instituted by large companies against small entities, inventors or competitors in the context of private disputes. The IPRs are initiated by companies that are sued in federal court when patent holders enforce the patents in private disputes. It is deceptive for these technology corporations to claim to represent the “public” in these disputes. Even in rare cases in which public interest institutions – often funded by big corporations to attack small entity technologies – or the PTO itself institute an IPR, the effect is to benefit a technology company, not the public. In fact, the public is benefited by a strong patent system that incentivizes disclosures, promotes progress and becomes public domain in a limited time.

Before the AIA, Congress passed a statute in 1980 to institute ex parte reexams and inter partes reexams in the PTO modeled after patent reissues that originated in the 19th century to repair patent errors. The data on ex parte reexams show that about 25% of patents reviewed remain unscathed, about 63% require only minor claim amendments and about 12% are unrepairable and beyond rescue. These data show a very different story from the application of IPRs, in which 76% of challenged claims are invalidated after institution of an IPR.

One problem with earlier inter partes reexam procedures was that these reexams were time-consuming and indeterminate. The Federal Circuit reviewed the legitimacy of instituting ex parte reexams in Patlex (Patlex Corp. v. Mossinghoff 758 F.2d 594 (Fed. Cir. 1985)) and Joy (Joy Technologies, Inc. v. Manbeck (959 F.2d 226 (Fed. Cir. 1992)). These decisions allowed the PTO to institute reexams in order to “correct errors” in the original patent examination process. However, the procedures for these reexams resemble a continued examination in light of new prior art that may serve to narrow claims. For a critique of reexams as unconstitutional since patent validity tests require a Seventh Amendment jury trial right, See Keane, M., Patent Reexamination and the Seventh Amendment, op cit., critiquing the reasoning in Patlex and supporting the view that, following McCormick, once issued, only an Article III court can invalidate a patent.

The AIA calls for the PTO to establish an adversarial forum for IPRs in which alleged patent infringers may challenge issued patents. Once a request for review is made, the PTAB will make a decision on whether to institute a review within 6 months of the initial request. The PTAB then takes from 12-18 months to review the patent claims based on novelty or obviousness. Either party may appeal the decision, but only to the CAFC. Although the AIA specifies that patent holders may amend claims, the PTAB has only allowed amendment in less than 1% of cases. The PTAB effectively holds a trial between the patent holder and the alleged infringers, which includes nominal discovery, pleadings and interview of expert witnesses. A three judge panel of administrative law judges determines the outcome of the trial.

IPRs are instituted based on the “likelihood of prevailing” standard. This probability of success standard, however, relies on very low standards of review, thus making the institution decision a self-fulfilling prophesy suffering from the deprivation of due process. In addition, the discovery procedures are biased against patent holders.

It should not be shocking to recognize that the PTAB notions of discovery differ markedly from federal court interpretations. Board authorization is essential for discovery beyond the most rudimentary request for documents and examination or cross-examination of witnesses. In order to obtain permission from PTAB to proceed with discovery beyond the simple request for documents and experts, the board must grant discovery requests based on whether there is a high probability of finding information that will be determinative, whether the information requested affects the opposing party’s litigation strategy, whether the information is obtainable in other ways, whether the request contains simple instructions and whether the request is extraordinarily burdensome. It is rare that PTAB allows discovery beyond the most rudimentary documents or testimony. Discovery in PTAB is purposely truncated, and, by its expeditious nature, meets no standards of federal court discovery procedures.

The PTAB trial is itself very abbreviated. While a federal district court trial involving patent infringement takes several days or weeks, PTAB “trials” – which consist merely of attorney oral arguments – take a few hours.

The AIA effectively removes from the federal district courts the patent validity component of the patent infringement trial. In most cases, the trial court stays the proceedings of a patent infringement case pending a review of patent validity by the PTAB.

The ideal of instituting patent validity review in the PTO was to find a cost-effective and speedy resolution of patent validity in a specialized agency that has expertise in the field. However, none of these assumptions have been true in reality because IPR proceedings in PTAB are very expensive and time consuming, thereby prolonging the time for a hearing of the dispute in the courts. For instance, a minimum of 18 months in PTAB (and 24 months in the CAFC) lands the controversy back in federal district court for an average three year wait to trial (and another trip to the CAFC). Moreover, IPRs appear to be no less expensive than litigation when assessing the cost of determining the issue of patent validity, with prices for defense ranging from $500K to $1M per matter. See Dolin, G., Dubious Patent Review, op. cit. Thus, IPRs effectively double the time to trial, from about 3 years to 7 years. In fact, IPRs appear to be a mechanism for harassing patent holders, with high costs of defense and a second bite of the apple for infringers. In sum, IPRs were intended to be speedy and cheap, but are in reality the epitome of patent purgatory.

In Cuozzo, the Court supplied a cursory review of PTAB on the issue of claim construction standards and deferred to agency interpretation of the statute by applying the classic Chevron deference. Further, in B&B Hardware, Inc. vs. Hargis Industries, Inc. (135 S. Ct. 1293 (2015)), the Court reviewed TTAB, the trademark review board in the PTO and agreed that TTAB’s final determinations were preclusive. However, the B&B Hardware majority decision improperly relied on state court precedence rather than Article I agency precedents. The Court did not review separation of powers issues. Further, trademarks originated in statutory law in 1870, not in the Constitution, illustrating a justification for administrative review under the public rights doctrine, revealing a marked difference between patents and trademarks. The Thomas dissent in B&B Hardware, on the other hand, provided a persuasive argument for limits of issue preclusion drawing on separation of powers doctrine and a suggestion to allow Article III court review of administrative decisions. Rather, the Court’s precedence applies in Astoria Fed. Sav. & Loan Ass’n v. Solimino (501 U.S. 104 (1991)) and shows the limits of preclusion.

Note also the view that decisions from the ITC, as an Article I tribunal, must be reviewed by Article III courts (Texas Instruments Incorporated v. Cypress Semiconductor Corporation (90 F.3d 1558 (Fed. Cir., 1996)). See Pearson v. Williams 202 U.S. 281 (1906); Churchill Tabernacle v. FCC 160 F.2d 244 (D.C. Cir., 1947); U.S. v. Raddatz 447 U.S. 667 (1980); and Perez v. Mortgage Bankers Assn 135 S. Ct. 1199 (2015).

There are solutions to control the abuses of PTAB. These include only instituting IPRs in rare circumstances that meet the clear and convincing standard of Microsoft v. i4i, allowing amendability in all cases to repair any deficiencies and applying procedures of due process found in the federal courts in order to provide consistency between fora.

Ironically, allowing amendments to “correct” claims in light of newly discovered prior art would cure 80% of patents subject to IPRs. Instead, an amendment practice occurs in ex parte reexams, which has the effect of substantially prolonging the process for patent holders. In fact, the lack of amendment procedures epitomizes abuse of discretion in the PTAB since amendment is disallowed in all but exceptional circumstances.

A Review of PTAB Procedures

The key to understanding the absence of due process in PTAB lies in identification of the procedures applied in IPRs. The PTAB procedures for IPRs include:

  • Application of the “broadest reasonable interpretation” (BRI) review standard;
  • No realistic opportunity to amend claims;
  • No real estoppel procedures, including ignoring estoppel of prior art previously reviewed;
  • Supplying an institution decision (that cannot be appealed) using the same panel that reviews the matter;
  • Application of the lower evidentiary standard of preponderance of evidence (POE) rather than the “clear and convincing” (C&C) standard applied in courts;
  • Stacking panels by the PTO director with a clear bias of judges to infringers;
  • Application of a broad interpretation of “obviousness”;
  • Allowing a group of companies to cooperate to successively attack patents;
  • Removal of federal district courts from review of PTAB decisions;
  • Allowing forced settlements in PTAB between the parties on unfair terms;
  • Allowing an appeal only to the CAFC with an effect to prolong determinations;
  • Requiring high asymmetric costs to defend a patent for the patent holder;
  • Failure of panels to supply a final determination on all challenged claims;
  • Failure of panels to consistently supply reasoning for their determinations;
  • Allowing any third party, including parties without standing or not involved in a dispute, to challenge a patent; and
  • Ignoring the presumption of validity in a patent.

The sum of these procedures shows a clear lack of due process, enabling a systematic attack on patents in an Article I tribunal that sabotages a fair playing field for the parties. It is argued that PTAB requires “parental oversight” in the federal district courts so as to prevent abuses.

The combination of these procedures suggests a strong bias against patent holders. For instance, applying the BRI claim interpretation standards (rather than the Phillips standards applied in federal courts that are tailored to mapping infringement) to the overly-broad obviousness standards demonstrates inclusion of a very wide set of prior art that is applied to kill patent claims. This PTAB approach to review is much wider than the procedures applied by the PTO in the initial patent examination and wider than the procedures applied by the federal courts. [See Solomon, The Myth of Patent Quality, SSRN, 2017.]

Procedural and Substantive Due Process Requirements of the Fifth Amendment

According to Judge Henry Friendly, Some Kind of Hearing, (123 U. Pa. L. Rev. 1267 (1975)), due process rights that apply to both civil and criminal matters include:

  • An unbiased tribunal.
  • Notice of the proposed action and the grounds asserted for it.
  • The opportunity to present reasons for the proposed action not to be taken.
  • The right to present evidence, including the right to call witnesses.
  • The right to know the opposing evidence.
  • The right to cross-examine adverse witnesses.
  • A decision based only on the evidence presented.
  • Opportunity to be represented by counsel.
  • The tribunal to prepare a record of the evidence presented.
  • The tribunal to prepare written findings of facts and the reasons for its decision.

The key elements of due process include notice, an opportunity to be heard and a fair hearing by a neutral decision maker. In addition to notice, timeliness and the right to present evidence, the most crucial elements of due process lie in the tribunal itself. Due process requires (a) impartial fact finding, (b) a decision on the merits that is not unreasonable or capricious and (c) a written decision that states the reasons for the decision.

The Fifth Amendment due process clause was stimulated by the arbitrary exercise of government power as the U.S. declared its independence from a tyrannical monarchy. The declaration of independence specifies a list of grievances that reflect the arbitrary exercise of government-sponsored power. The creation of an independent judiciary with life tenured judges was intended to create a critical forum for maintaining fairness and impartiality of disputes.

The requirement of a fair hearing aimed to supply a neutral forum for making judicious determinations without arbitrary takings of property or liberty. A hearing is a “basic aspect of the duty of government to follow a fair process of decision making when it acts to deprive a person of his possessions. The purpose of this requirement is not only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment.” (Fuentes v. Shevin, 407 U.S. 67, 80-81 (1972)) Furthermore, an impartial tribunal is an essential right.

“The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law . . . At the same time, it preserves both the appearance and reality of fairness . . . by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him.” (Marshall v. Jerrico, 446 U.S. 238, 242 (1980))

The burden is on those arbitrators or adjudicators to show that they are free from conflicts of interest. A judge must recuse himself if there may be “a direct, personal, substantial, pecuniary interest” (Tumey v. Ohio, 273 U.S. 510 (1927)) in a matter that shows a tendency to be biased. The Fifth Amendment guarantees immunity from bias.

In addition to procedural due process, elements of substantive due process may apply to common law cases as well. For instance, IPRs have demonstrated a clear government agency intrusion on private property rights by compelling involuntarily the expenditure of great costs to defend a patent after its issuance by a government agency. The AIA appears to disrupt the right to privacy in a patent by the patent holder by instituting patent validity review in a government agency against the will or interest of the patent holder. Patent holders have the liberty not to be relentlessly attacked by typically large technology company infringers employing asymmetric economic advantages in IPRs. The existence of IPRs transform a patent from an asset to a liability, forcing patent holders to incur a great cost (of six to seven figures) to defend. In brief, IPRs constrain the patent holder’s liberty to own a patent without molestation by a government entity. Consequently, substantive due process protects patent holders from undue incursions by the legislature to establish Article I tribunals to attack patent validity. The profound adverse effects of IPRs on the economy, viz., substantial declines in technology investment and the consequent declines in productivity growth, show that IPRs are illegitimate.

TO BE CONTINUED… 

Other series articles:

The Author

Neal Solomon

Neal Solomon is CEO of Advanced System Technologies Inc. A prolific inventor of technologies involving semiconductors, communications, data management, imaging, robotics and healthcare, he holds degrees from Reed College and the University of Chicago.

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 18 Comments comments. Join the discussion.

  1. Dan Hanson October 19, 2017 12:23 pm

    Not to take anything away from Judge Friendly, but there are some other aspects of fundamental fairness that ought to be present in formal adversarial proceedings in general, and in IPR proceedings in particular.

    There must be some rules of evidence. Those rules need not be as detailed as the Federal Rules, but there must be some restrictions upon what evidence may be presented or relied upon. Evidence must be relevant (see 5 U.S.C. section 556(d)). Experts must be qualified to give opinion evidence by their knowledge, education, training, or experience. Contested documents must be authenticated (otherwise, spurious or fraudulent documents could be used to challenge a patent). In IPR proceedings, there is an important rule of evidence, found in section 311(b): a challenge to a patent may be made “only on a ground that could be raised under section 102 or 103 and only on the basis of prior art consisting of patents or printed publications.”

    The tribunal must abide by higher authorities. The tribunal may not ignore or contravene Constitution, statute, rule, and higher court precedent.

    When a decision is made with due process, there ought to be a degree of finality. A tribunal ought not to re-litigate identical disputes.

  2. Silly propaganda. October 19, 2017 5:27 pm

    PTAB trials span months. You are confusing the final oral hearing with the full administrative “trial”… but you knew that.

  3. Gene Quinn October 19, 2017 6:43 pm

    Silly propaganda-

    What a smarmy comment by one using a fake name and fake e-mail address. Obviously, Neal is correct and you are just picking a nit over nothing.

    When one refers to a “trial” in Federal Court they are referring to the final event, not all the motions and telephone calls and depositions. Yet you seem to be trying to imply that some kind of “full administrative trial” lasts months. Well, if you are referring to what a knowledgeable person would refer to as pre-trial activity then in Federal Court that pre-trial activity can and does last many years.

    A clever attempt to discredit the author, but one that those familiar with the PTAB won’t fall for.

  4. Edward Heller October 19, 2017 7:44 pm

    Even if the procedures might deny due process, the statute might remain constitutional if there is nothing in the statute that forces unfairness. The most glaring problem with the statute from a due process point of view is the requirement to litigate validity in the PTO, a political organization. This has never been deemed sufficient for due process purposes when fundamental constitutionally protected rights are involved.

    it might be sufficient for congress to satisfy the required independence (if that were the only problem with IPRs) if it split the PTAB out from the PTO, made them ALJ’s, and funded the whole enterprise from the treasury to eliminate bias in favor of invalidating patents.

    But how does one complain about procedures? One has to be adversely affected by some unfairness in order to complain. Fortunately, the Federal Circuit seems recently to listen to such complaints. But unfair procedures can be rectified by rule changes. Their presence does not mean the statute is unconstitutional.

  5. Karen S October 20, 2017 8:11 am

    The author is right on. Not many patent attorneys do any appeal work, but for those of us who do, the PTAB experience is less than satisfying and more than bewildering for patent owners. At least at trial, the other side is paying their own costs. I have many patent owners questioning the value of patents and some who have just given up on the entire process. Nothing like an IPR to force a bad settlement on a patent owner.

  6. Paul F. Morgan October 20, 2017 10:08 am

    IPRs are not going to get eliminated by allegations so easily rebutted that they destroy the credibility of other arguments. E.g., saying “there is no interpretation of PTAB procedures under which due process applies. PTAB omits due process,” when there are published Fed. Cir. decisions specifically applying due process to IPRs to remand or reverse such IPR decisions. Likewise, asserting that IPR trials are only the short time for oral argument in the final hearing is confusing the prior expert declarations and live evidentiary cross-examinations [on which written record the PTAB decision must be based] with the mere pre-trial discovery depositions of a D.C. trial. [There are also vastly less issues than in an infringement trial, since the proceeding can only relate to the patents and publications in the IPR petition.]
    Certainly there are achievable improvements in IPRs. The two biggest specific complaints about IPRs on this blog and in several unsuccessful briefs have been (1) the difficulty of making claim amendments and (2) serial IPR petitions.
    The former was just addressed en banc by the Fed. Cir. in Aqua Products v. Matal. The latter has now been addressed by the PTAB itself. The PTAB has justdesignated as “precedential” the expanded panel decision in General Plastic Industrial Co., Ltd. v. Canon Kabushki Kaisha listing restrictions on serial IPRs, so it now binds all members of the Board. They and other improvements should be made into rule changes.

    P.S. Those same above arguments in this article could have been made many years ago against PTO interferences, for example.

  7. Paul F. Morgan October 20, 2017 10:21 am

    Making clearly rebuttable allegations, like saying there is no due process in or required in an IPR, destroys the credibility of legitimate complaints. It flys in the face of published Fed. Cir. decisions applying due process to IPRs to reverse or remand IPR decisions.

  8. Anon October 20, 2017 11:56 am

    I note, with no small sense of irony, that Mr. Morgan’s own credibility has been destroyed by his own past “cheerleading” efforts in support of an obviously flawed IPR system.

    That being said, he may have a point about an overuse of hyperbole, and a better call for explicit points in which specific points of due process has evidenced an absence, and other points wherein challenging PTAB as to its exercise of what Congress has provided reflects merely asking the wrong questions (and concerning the wrong entity).

  9. Gene Quinn October 20, 2017 3:24 pm

    Paul Morgan-

    You say: “saying there is no due process in or required in an IPR, destroys the credibility of legitimate complaints.”

    That is, of course, absolute nonsense. As I have document here on IPWatchdog.com chapter and verse, the PTAB does not provide due process by any stretch of the imagination. So you can continue to say (and believe) that we have not documented the abuse, that is simply false. See:

    http://www.ipwatchdog.com/2017/09/11/solution-ptab-disband-runaway-tribunal/id=87844/

    PLEASE notice that every transgression identified is supported with a link to an article addressing a specific situation. But to save yourself the trouble, any lawyer should realize that a tribunal that refuses to accept and consider timely submitted evidence is engaging in a blatant due process violation. Furthermore, a tribunal that has decision makers that are compromised by conflict obviously creates a very serious due process violation. Still further, when the USPTO admits to stacking panels to mandate the outcome the Director alone finds acceptable that is a due process violation.

    You say that claims that the PTAB lacks due process flies in the face of Federal Circuit decisions. That, of course, is extremely unpersuasive. The fact that the Federal Circuit doesn’t see a problem pretty much is a conclusive finding that there is a problem. The Supreme Court does not take cases or issues to compliment the Federal Circuit, and the truth is the Federal Circuit has outlived its usefulness. Panels make idiotic decisions that are in conflict with other panels and decades of well established law.

    For crying out loud, the Federal Circuit itself really doesn’t afford meaningful due process when outcomes are completely panel dependent and parties have no idea whether than have any chance until after they’ve spent months and many tens of thousands of dollars (perhaps hundreds of thousands). Only on argument morning do you know the panel and whether you have any chance. So parties do not have a 50-50 chance at the Federal Circuit. Once argument morning arrives you know you either have a 100% chance of winning or a 100% chance of losing based on the panel makeup. At a minimum, such whimsical justice does not comport with the principles of due process.

  10. Gene Quinn October 20, 2017 3:29 pm

    Paul Morgan-

    You also say the discussion of due process is misplaced, which makes it rather clear you are not understanding the series on the public rights doctrine.

    I’d also love for you to explain how a tribunal that refuses to consider timely submitted evidence is providing parties with due process. You seem to keep saying that I and others are wrong to say the PTAB doesn’t provide due process, but you only ever seem to wrap yourself in dubious Federal Circuit decisions that up until recently have turned a blind eye to everything the PTAB has done.

    Do you actually think tribunals can refuse to admit evidence the rule and statute say is admissible? Let’s start there.

  11. Invention Rights October 20, 2017 5:51 pm

    The PTAB experiment has demonstrated that due process is inherently impossible. When the executive branch has absolute control over vested property rights that is called an oligarchy. It inherently violates Separation of Powers. The remedy would require independent judges, jury trial on issues of material fact, presumption of validity, liberal discovery, live testimony, and justice over expediency. In other words, the fix is to create an Article III Court.

  12. Anon October 21, 2017 2:23 pm

    IR (and Ned),

    And yet, Congress decided that that legal remedy was not adequate.

    😉

  13. Paul F. Morgan October 21, 2017 3:44 pm

    Gene, we have had 5 years of IPRs yet not one patent owner has made any serious attempt to take any alleged due process violation to the Supreme Court, much less get cert granted, which some patent owner would surely have done by now if they had a credible due process violation case that the Fed. Cir. has not already dealt with. Especially after the Sup. Ct. Cuozzo decision. The pending Oil States Sup. Ct. decision is not on that issue.

  14. Anon October 21, 2017 7:00 pm

    Mr. Morgan.

    I dismiss anything that you have to say on Constitutional issues given your rather well known unwillingness to discuss the merits of the same on blogs.

    When you decide to actually engage on the merits rather than snipe from the sidelines, perhaps then your words may be more than just a clashing cymbal.

  15. Paul F. Morgan October 26, 2017 7:59 pm

    One of the unsuccessful due process arguments folks have made again IPRs is their only one year time period. Even though only the only issues in an IPR are 102/103 based on only initially cited patent or publications. Why do these same folks have no such due process problem with “rocket docket” district courts in which patent suit parties get much shorter deadlines for discovery and everything else on many more issues?
    Anon, your idea of “engaging on the merits” on constitutional issues is merely expressing unsupported personal opinions on the subject, which have been consistently proven wrong or ignored in all previous Fed. Cir. decisions and cert challenge attempts. Now we have an actual Supreme Court Oil States case pending in which IPR constitutionality will be decided by the Court – not by anyone on any blog.

  16. Anon October 27, 2017 8:01 am

    One of the unsuccessful due process arguments folks have made again IPRs is their only one year time period

    I would say that you have merely advanced a strawman as this is the very first time that I have seen ANYONE make a due process argument concerning the one year time period.

    Then again, such an argument may likely only come from those wanting the IPR regime to be even more damaging than what it is, and thus that argument may have been advanced in circles that I do not inhabit.

    As to “Anon, your idea of “engaging on the merits” on constitutional issues is merely expressing unsupported personal opinions on the subject, which have been consistently proven wrong or ignored in all previous Fed. Cir. decisions and cert challenge attempts.” – that is utter B$ and quite a cop-out from you Mr. Morgan. It also quite misses the point that YOU refuse to even engage on the merits, but still feel quite content to snipe from the sidelines. Are you afraid of “being wrong?” Do you think that some (all?) of my “being wrong” is ACTUALLY that I have the law wrong as opposed to the scoreboard being broken?

    You are aware – or should be aware – that just because the Supreme Court is the “end of the line” on the judicial train, that they ARE right “just because” they are final.

    Most all state attorney oaths actually recognize a different order of ascendancy between the Constitution and any one of the three branches of the government that operate under that Constitution.

    As it is, your cowardice and mere willingness to snipe from the sidelines says more about you than the attempted denigrations that you seek to attach to me. While you will not engage (and even post-facto do not apply critical thinking), I will engage and will display critical thinking BOTH before and after the Court deigns to share its views. Which of us, I wonder (not really) hews more to our state attorney oaths? Which of us, I wonder (not really) does more to develop critical dialogues on not only how patent law IS, but also on how patent law IS felt to be by the Court, and shows more knowledge of the history and intent of patent law vis a vis innovation.

    But please, more vapid cheerleading from you while avoiding critical thinking and development of dialogue on legal issues that the Court may touch upon. I suppose that some amount of that type of “filler” does some good some how.

  17. Anon October 27, 2017 8:03 am

    You are aware – or should be aware – that just because the Supreme Court is the “end of the line” on the judicial train, that they ARE right “just because” they are final.

    should read:

    You are aware – or should be aware – that just because the Supreme Court is the “end of the line” on the judicial train, that they ARE NOT right “just because” they are final.

  18. Edward Heller October 27, 2017 10:20 am

    Paul, while I have previously expressed my opinion on this topic, when the question is whether a statute is unconstitutional on due process grounds, it must require a procedure or structure that is inherently unfair in some regard. The only possible problem with the IPR statute from a due process point of view is its assignment of the question of validity to the PTO, which many view as hardly unbiased even though it may be an expert agency in terms of patent law. But this issue is inherently involved in the Article III issue before the Supreme Court in Oil States. See e.g., Breyer’s dissent in Stern.

    Every other argument regarding due process devolves into PTO rules and actual practice. Each alleged problem can be considered when they adversely affect a particular party. The remedy is a rule change, not a declaration that the patent statute is unconstitutional.

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