Posts Tagged: "property rights"

Open Letter from Conservatives: What’s at stake in Oil States v. Greene’s Energy Group

If wrongly decided, Oil States Energy Services v. Greene’s Energy Group may be the next Kelo v. City of New London decision. At bottom, the case will decide whether patent rights – which are enshrined in our Constitution – are fundamental private property rights, or something less. If the Court adopts the latter perspective, it would radically change the American view of property rights and endanger an innovation edge enjoyed by American companies and consumers alike… Conservatives must be vigilant about the importance of the Oil States case and understand what is at stake. We do not want to wake up on the morning after this decision and find, just as we did after the Kelo decision, that more of our property rights are slipping away. The Supreme Court must uphold our constitutional patent rights and end the administrative usurpation of this judicial responsibility. Our constitutional principles, and the future of American innovation, depend on it.

Law Professors File Briefs with the Supreme Court in Oil States

A review of amici briefs filed with the U.S. Supreme Court in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC provides evidence of a stark split in how various stakeholders in the U.S. patent system view the patent validity challenge activities ongoing at the Patent Trial and Appeal Board (PTAB). Whereas many of the world’s largest tech companies who have a dominant advantage in the consumer marketplace are in favor of the PTAB remaining active, many small entities and individual inventors are greatly opposed to the PTAB and its differing standards on patent validity leading to a higher rate of invalidation than in Article III district court proceedings. A look at amici briefs coming from law professors can shed some light on where the academic sector comes down on the subject of the PTAB’s constitutionality.

The Constitutional Underpinnings of Patent Law

The United States Constitution grants to the Congress the power to grant patents. The relevant portion of the Constitution is Article I, Section 8, clause 8. This clause uses of the word “Right” and is the only place in the Constitution the Founding Fathers actually used the word “Right.” Yet today the Supreme Court is poised to determine whether this most fundamental of all rights, a right deemed so important that it was the only right specifically mentioned in the Constitution itself, is a private right or a public right that can be stripped with proceeding in an Article III federal court.

McCormick and the Separation of Powers Constraints of Patent Invalidation

The argument that patents are private rights is supported by over two centuries of jurisprudence. Patent rights derive from Article I, section 8, clause 8 of the U.S. Constitution, which empowers Congress to promote progress by creating laws involving patents and copyrights. The patent bargain exchanges disclosure of new and useful inventions for a limited term exclusive right. The public benefits from the patent bargain in two ways. First, the disclosure enables others to build on the invention. Second, after a twenty year period, the public receives the benefits of the invention for free as the rights flow to the public domain. The patent bargain stimulates incentives to invent, to invest in innovation and to take ex ante risks.

The Classical Public Rights Doctrine: Growth of the Administrative State

The Crowell Court distinguishes between matters of common law adjudicated in the federal courts and matters that may be reviewed in administrative agencies. However, the Court is concerned mainly with the maintenance of due process in administrative tribunals… The Crowell Court is thus concerned about the “essential demands of due process” and the limits of federal government authority. Enabling administrative tribunals to act merely as finders of fact, within the bounds of due process, and allowing for their findings to be reviewed in Article III courts, the issue of separation of powers is prominent in the preservation of the independence of the judiciary.