Responsive merits briefs have been filed in Oil States v. Greene’s Energy:
The Government presents the question as follows:
Whether inter partes review comports with Article III and the Seventh Amendment.
Rather than seeing a patent right as property, the Government brief identifies patents as simply “revocable privileges” or “governmentally-conferred franchises” whose creation are not associated with any natural right of an inventor but instead are simply tools of public policy designed to “benefit the public by providing an incentive to innovate.”
For the government and patent challengers, it is important to distinguish patents on inventions from traditional “land patents” since those may not be revoked administratively. According to the government, the distinguishing point is that the government previously owned title to land, but patent rights are a government creation:
The government in issuing a patent [for invention] does not (as with a land patent) convey title to something it previously owned, but instead grants a limited franchise whose scope and contours are wholly defined by the government itself.
Regarding the 7th Amendment challenge – the Government writes that the 7th amendment right does not apply to situations where resolution of a conflict is properly assigned to an administrative (non-Article-III) resolution.
As Greene’s Energy writes – and all parties appear to agree: “The nature of U.S. patent rights … is at the core of the constitutional question before the Court.” What I think may be the decisive is buried in Greene’s FN4: “At the very least, patents are quasi-private rights, that is, ‘statutory entitlements * * * bestowed by the government on individuals.'” quoting B & B Hardware v. Hargis Indus., 135 S. Ct. 1293 (2015) (Thomas concurring in trademark context).
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I’ll note here that to make its policy-case that there are too many patent applications for the PTO to properly handle, the Government perpetuated the USPTO’s false statement that “In 2015, the USPTO received more than 600,000 applications—more than three times as many as it had received two decades earlier.” That statement includes
273,000 192,000 requests for continued examination (RCEs) as “applications.”