Shook Partner Sharon Israel commented on the U.S. Supreme Court decision regarding inter partes review in IP Watchdog’s article, “Industry Reaction to Supreme Court Decision in Oil States v. Green Energy.” The Court held that inter partes review is constitutional, and that patents are a government franchise that are subject to review by the Patent Office even after granting and can be revoked at any time.
“Today, the Supreme Court added both certainty and uncertainty to inter partes review proceedings,” Israel told IP Watchdog. “In Oil States, the Court settled the overarching question that IPR proceedings do not violate Article III or the Seventh Amendment of the Constitution. The decision leaves some room for further constitutional challenges, e.g., for retroactive application to pre-AIA issued patents, due process challenges, and other potential constitutional challenges. However, the Court made clear that the overall scheme for administrative trial proceedings created by Congress under the America Invents Act remains alive and well.”