The Supreme Court Takes on Patents and the Private-Versus-Public-Rights Distinction — John Golden

Post by John Golden

On June 12, the United States Supreme Court granted certiorari with respect to the first question presented in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, No. 16-712 (S. Ct. 2017):

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.

This grant gives new prominence to a question flagged in my post of May 30, the question of whether patents involve public or private rights for purposes of U.S. administrative law.  In this context, the question is refracted through a definition of “public rights” that the Supreme Court has developed to delimit the scope of Article III courts’ exclusive powers.  A determination that patent rights are more properly viewed as “private” than “public” could lead to a conclusion that inter partes review, as well as other new mechanisms for the administrative review of patent validity, are unconstitutional. 

For Court watchers eager to discern the impact of the Court’s newest member, the Court’s grant is likely to have significant interest.  Justice Gorsuch came to the Court with a reputation for skepticism of existing power allocations in the administrative state—a skepticism that some found “refreshing” but others characterized as “incendiary.”  Will the handling of this case hint at how Justice Gorsuch’s skepticism will affect the future of administrative law?

In any event, for private law mavens, the Court’s grant gives greater urgency to the questions at the end of my prior post.  Can private law scholarship help the Court better define its private-versus-public-rights distinction?  Can such scholarship lead the Court to reconsider the distinction altogether?  The briefing and oral argument in this case should be fascinating to follow.

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