Bill Cosby famously quipped about his father warning, “You know, I brought you in this world, and I can take you out. And it don’t make no difference to me, I’ll make another one look just like you.” Thankfully, our government doesn’t display this bombastic, albeit tongue-in-cheek, style of paternal justice. Ours is a system governed by laws. Where our most ancient natural or civil rights are in play, we have “high walls” to keep government actors from acting capriciously by, let’s say, asserting as one branch of government the power assigned to a different one. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 239 (1995). That is the heart of Separation of Powers – the bedrock upon which the United States built all of its public institutions over the past 225 years.
And so it should be when we talk of the grand bargain between an inventor and the sovereign. The modern patent system exists to encourage disclosure. Inventors respond to that inducement. They surrender secrecy over the fruits of their intellectual labor. In exchange for disclosure, the government grants exclusive rights. As constitutional private property, those rights receive protection from interference by the Executive Branch as strong as that of any private property.
If only that were so.
In a filing by the United States Patent and Trademark Office on June 26, 2015, in my clients’ case asserting the unconstitutionality of inter partes review, the Patent Office writes:
“Because Congress may authorize the PTO to issue patents in the first instance, Congress may equally authorize the PTO to reconsider its patentability decisions and to correct its mistakes.”
Brief for Appellees in Cooper v. Lee, App. No. 15-1205 (4th Cir.), at 10. It goes on:
“Because Congress may empower PTO to issue patents in the first instance, it may equally empower PTO to revisit its decisions to ensure that the patents were properly issued.”
Id. at 29.
Bill Cosby’s dad would be gratified.
If he thought about it at all, Cosby’s dad might have also shared the extraordinary understanding of what a patent is that the government just conveyed: “patents for inventions… are entirely created by the federal government.” Id. at 32. Yes, that equal blend of narcissism and solipsism that scored laughs in the 1980’s has crept into the government’s viewpoint about what role it plays for inventors. How many named inventors on issued patents would be surprised to learn what small role (nonexistent, even) they have always played in the patent system, according to the official position and political philosophy of the current administration?
My clients, of course, tell a different story. They point out the historical antecedents of courts adjudicating patent invalidity. Because of that history, binding Supreme Court authority holds that any adversarial invalidation proceeding over the validity of an issued invention patent invokes the “judicial” power. It must happen in court, if it happens at all. Article III of the U.S. Constitution reserves such power to the Judicial Branch. The Federalist No. 43 bears this out, placing invention patents on as high a pedestal as copyrights, in terms of being natural rights that should merit exclusivity for their creators. Thus, inter partes review is unconstitutional.
The Fourth Circuit briefs are here, here and here. In particular, our clients’ briefing relies on McCormick Harvesting Mach. v. Aultman, 169 U.S. 606 (1898), which explicitly forbids Patent Office proceedings from canceling original claims of issued patents.
The one amicus filing – in support of our clients – is here.
No amicus made an appearance to support the administration. Funny that, given the hundreds (maybe thousands) of victorious infringers, radiating glory after using inter partes review to place their 95%-chance “gamble” that the agency that brought those patents in this world, would just as easily take them out.