The Constitutionality of Inter Partes Review: Considering the Outcomes of the Supreme Court's Oil States Decision

Inter partes review has, in a very short time, become a core part of patent litigation practice in the United States. In many cases it has replaced district-court litigation. But IPRs may soon disappear: the Supreme Court recently heard oral arguments in the highly-publicized Oil States case, in which the petitioners argued that IPRs are unconstitutional precisely because they can and do replace district-court suits. And as unlikely as it seemed before the Court granted certiorari in Oil States, the Court may agree.

Since the founding of our republic, the right to trial before an independent judge and an impartial jury has been fundamental. According to Article III of the U.S. Constitution, judicial matters are to be heard by judges having life tenure:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

And, according to the Seventh Amendment, common law court trials bring with them the right to a jury for fact-finding:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.

The Founding Fathers believed it essential that the judiciary not be subordinated to the political branches of government. See, e.g., Alexander Hamilton, Federalist No. 78 ("There is no liberty if the power of judging be not separated from the legislative and executive powers."). And, more recently, the Supreme Court has observed that Article III "serves a structural purpose, barring congressional attempts to transfer jurisdiction [to non-Article III tribunals] for the purpose of emasculating constitutional courts."1

In Oil States Energy Services, LLC v. Greene's Energy Group, LLC, the Supreme Court granted certiorari to determine whether the IPR procedure established by the America Invents Act of 2011 is exactly that type of congressional attempt to transfer jurisdiction away from Article III courts. In particular, the court granted certiorari on the following question:

Whether inter partes review—an adversarial process used by the Patent and Trademark Office (PTO) to analyze the validity of existing patents—violates the Constitution by extinguishing private property rights through a non-Article III forum without a jury.

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Footnote

1 Wellness Int'l Network, Ltd. v. Sharif, 135 S. Ct. 1932, 1944 (2015) (internal quotation and citation omitted).

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