Benjamin Appelbaum, Attorney at Law

SCOTUS to assess constitutionality of patent review system

Every day, the U.S. Patent and Trademark Office is inundated with patent applications, totaling to an average of 600,000 per year. This large number of requests combined with pressure from patent holders to speed up the deliberation process has led to an estimated 70 percent of patent examiners spending less time than they should on each application. The result has been an increase in erroneously granted patents. However, residents of New Jersey should know that there is a review system in place meant to address this problem. However, it soon may either be upheld or declared unconstitutional by the U.S. Supreme Court.

An Inter partes review is a process that challenges the validity of a patent, which may lead to it being revoked or canceled. This review is less costly than litigation and is considered useful in allowing for competition, cutting down on patent trolling and preventing bad patents from gaining monopoly power.

SCOTUS has agreed to hear a case, Oil States Energy Services v. Greene's Energy Group, and it will ultimately decide whether inter partes reviews violate the Constitution. Detractors say that it does, specifically by taking away private property rights through a non-Article III forum without a jury. Supporters say that it supports Article I, Section 8, Clause 8 of the Constitution, which gives Congress the power to "promote the progress of science and useful arts."

Those who believe they have a strong patent for a novel and useful invention must learn everything they can about patent law. Doing so helps ensure that applications be approved for the right reasons and never be challenged through an inter partes review. An attorney can help clients choose the right patent and conduct a thorough patent search. On the other hand, those who wish to challenge a bad patent will also want to seek legal counsel.

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Benjamin Appelbaum, Attorney at Law - Intellectual Property

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