The Patent Bargain and the Fiction of Administrative ‘Error Correction’ in Inter Partes Reviews
The following is a summary of my paper on Private Patent Rights, the Patent Bargain and the Fiction of Administrative “Error Correction” in Inter Partes Reviews. As the Supreme Court considers in Oil States v. Greene’s Energy the constitutional limits on adjudicatory authority of the U.S. Patent and Trademark Office (“PTO”), it is important to recognize that the substantive question at hand is no longer whether or not the patent right is a property right. Contrary to widespread belief, both respondents – Greene’s and the Government – concede that the patent right is a property right. They contend, however, that adjudication of those rights is subject to the “public rights” exception, permitting Congress to remove patent validity adjudications from Article III courts and relegate them to an administrative tribunal, the PTO’s Patent Trail and Appeal Board (“PTAB”), whose final fact-finding is conclusive and binding on Article III courts.