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On the 27th of this month, the Supreme Court will hear Oil States Energy Services’ argument that the inter partes review (IPR) process for patent challenges is unconstitutional. The controversy originated in 2012 when Oil States sued Greene’s Energy Group LLC for infringement of its hydraulic fracturing patent and Greene’s countered by initiating an IPR proceeding that resulted in the invalidation of Oil States’ patent.

Inter partes review (IPR) is a procedure conducted by the Patent Trial and Appeal Board (PTAB) in which previously granted patents are reexamined for validity, based on challenges of novelty and/or obviousness. Since its inception as part of the America Invents Act of 2012, the PTAB has received more than 7000 petitions challenging patents and has issued over 1300 decisions invalidating patent claims.

IPR decisions are rendered by technical specialists, not juries. As such, Oil States argues the IPR system is in violation of Article III of the Constitution and the Seventh Amendment. Article III establishes the Supreme Court and lower federal courts and their power to hear all cases arising under United States law and the Constitution. The Seventh Amendment provides the right to a jury trial for any civil controversy exceeding twenty dollars. In its brief, Oil States argues patents are private property rights and it is unconstitutional to revoke such rights in the absence of a jury or an Article III forum.

On the other side, Greene’s Energy and the government contend PTAB’s authority to review patents is one in the same with its power to issue patents in the first place. In its brief, Greene’s Energy argues patents are public rights created by the government and are thereby revocable by the government. Apple also filed a brief maintaining the IPR process is “fair and balanced.” Having used IPR more than any other company, Apple further argued it is good policy as it provides a quicker and less expensive alternative to district court litigation.

The Federal Circuit has previously ruled on essential the same issue presented in the Oil States case. In MCM Portfolio LLC v. Hewlett-Packard Co., the Federal Circuit ruled IPRs are not in violation of the Constitution as Congress created the United States Patent and Trademark Office to serve the important public purpose of incentivizing innovation and this includes correcting the agency’s own errors in issuing patents. If the Court follows this precedent, it will likely rule against Oil States’ in favor of the validity of the IPR process.