“The patent bargain is the foundation upon which the patent system is built: in exchange for protections for an invention, the inventor agrees to make public their inventions so that others may build upon it.” The patent bargain creates a presumption of protection for the inventors, yet categorizing the patent a public right or a private right has diminished expectations for inventors and confusion for the masses. On October 11, 2016, the Supreme Court denied two petitions for writ of certiorari that challenged the constitutionality of Patent Trial and Review Board proceedings on the basis of the patent owner’s Seventh Amendment right to a jury trial and Article III separation of powers. The latter of those cases is the cornerstone for which this comment rests. In Cooper v. Lee, Petitioner J. Carl Cooper asked the United States Supreme Court to review a section of the Leahy-Smith America Invents Act that established “inter partes review,” (IPR) a procedure for administrative review of a patent. Making a number of constitutional challenges, Cooper asserts that inter partes review empowers an executive agency tribunal to assert judicial power cancelling a private property right. Moreover, Cooper stresses that patent disputes among private parties are disputes that have been known in the common law courts of 1789, afforded a trial, and cannot be adjudicated by an advisory opinion.6 After a tumultuous trip through the legal system in an attempt to finally determine the constitutionality of the IPR system, the high court has again left us pondering the issue of patent adjudication. With its denial of the petitioner’s writ for certiorari, the Court has again refused to declare whether patent rights are a private or public right. What does this mean for patent owners going forward? The waters are murky, but we will continue to see the adjudication of patent disputes by a non-Article III tribunal. This Comment examines a key question for patent administrative law: whether the grant of a patent is a public right, (i.e. a right that is primarily a concern of the public and can only be conferred by the government) thus subject to revocation by an administrative agency? In analyzing this concern, this Comment will address three subjects. First, this Comment will explore how section 311 of the Patent Act established the process of inter-partes proceedings and section 321 established the post-grant review of patents. Second, this Comment will outline the case law challenging the constitutionality of section 311 and section 321. Third, this Comment will examine the competing perspectives of whether a patent is a public or private right. This Comment has important implications for whether section 311 and section 321 are constitutional exercises of congressional power. Finally, this Comment will attempt to foreshadow how the outcome of current case law will affect the patent bargain and adjudication scheme.
Jasmyne M. Baynard,
Private or Public Right? Who Should Adjudicate Patentability Disputes and Is the Current Scheme Really Constitutional?,
21 Marq. Intellectual Property L. Rev. 57
Available at: https://scholarship.law.marquette.edu/iplr/vol21/iss1/5