This week, the Supreme Court granted Oil States Energy Service, LLC’s Petition for Cert, challenging the constitutionality of the IPRs. The primary question presented in Oil States’ petition was whether the IPR “violates the Constitution by extinguishing private property rights through a non-Article III forum without a jury.” If the Supreme Court were to find IPRs unconstitutional, it would upend the AIA-based reviews (IPR, CBM, and PGR), and likely also ex parte and inter partes reexaminations. Elimination of IPRs would take away one of patent litigation defendants’ strongest tools for leveling the playing field against plaintiffs, and call into question the status of a multitude of patents found to be invalid.
New patent litigation filings have been decreasing. The decrease is likely attributable to many factors, including Alice challenges and TC Heartland’s venue clarification. But IPR petitioners’ success rates must be a consideration of any would-be patent plaintiff. By agreeing to hear this appeal, the Supreme Court will give patent owners a ray of hope that a proceeding that has been used to invalidate an unprecedented number of patents could be coming to an end.
Last month, the Supreme Court agreed to review the Board’s partial institution practice in IPRs. With two cases being considered, fundamental changes in post-grant challenges may be coming.