Posts Tagged: "MCM Portfolio LLC"

En Banc Federal Circuit Dodges PTAB Constitutionality

Patlex, which dealt with reexamination of applications by an examiner — not by an Article I tribunal — could be considered a next step beyond McCormick. MCM, however, simply cannot be viewed as consistent with either Patlex or McCormick on any level. Indeed, the Supreme Court was abundantly clear in McCormick, which remains good law. The courts of the United States (i.e., Article III courts), not the department that issued the patent, is the only entity vested with the authority to set aside or annul a patent right. Since the PTAB is not a court of the United States, it has no authority to invalidate patent rights. It is just that simple.

Is the USPTO’s IPR Process Constitutional?

I represent MCM Portfolio LLC, which is seeking Supreme Court review of a recent decision of the United States Court of Appeals for the Federal Circuit upholding the constitutionality of the inter partes review (IPR) procedures created by the America Invents Act (AIA). The petition is available here. Amicus briefs in support of the petition are being filed May 31. We argue that IPR violates Article III of the Constitution, which vests the judicial power in the federal courts, and also the Seventh Amendment, which guarantees a right to a jury in civil litigation.