In Oil States v. Greene’s Energy, the U.S. Supreme Court ruled that the Patent Trial & Appeal Board (PTAB) can cancel patents through administrative proceedings because patents are not private property rights, but instead are “public rights” (special privileges). Thus, constitutional protections like the separation of powers doctrine or the Seventh Amendment do not apply in determining whether a patent was validly issued. Oil States was the first case in which the Supreme Court held that patents are public rights, but the Court also limited its holding to only the question of the validity of a patent. It declined to reach other constitutional issues, such as how the Due Process Clause and Takings Clause would apply to patents.
In this presentation, Professor Mossoff will discuss the longstanding dispute over the legal status of patents, the extensive judicial and legislative precedents reaching back to the early 19th century that patents are private property rights, and what may happen in the cases addressing these issues in the coming years. Is Oil States the first step in a fundamental reframing of patents as special regulatory entitlements, or will it be limited to the specifics of the PTAB and cancelation of issued patents given new evidence of a patent failing the statutory patentability requirements?