Ron Katznelson’s new paper is available online, titled Private Patent Rights, the Patent Bargain and the Fiction of Administrative ‘Error Correction’ in Inter Partes Reviews. Ron argues:
The exclusive patent right is not a creature of Congress. That right originates with, and is created by, the inventor. It is only secured by statute subject to the Constitution, as part of the patent bargain in exchange for the inventor’s public disclosure of the invention and of the manner and process of making and using it.
No PTO “error correction” in an issued patent is possible because the public disclosure (that might have been otherwise kept as a common-law trade secret) cannot be returned – the exchange of rights upon patent issuance is irreversible and uncorrectable. Extinguishing the inventor’s private patent right must therefore be the exclusive province of Article III courts.