Federalist Society: The Supreme Court Tackles Patent Reform, by Richard Epstein
This post originally appeared on the Federalist Society’s website on October 27, 2017.
Oil States Energy Services, LLC v. Greene’s Energy Group, LLC is the most important intellectual property case to come before the Supreme Court in many years. It challenges some of the innovative dispute resolution provisions of the 2011 American Invents Act (AIA) the most significant legislative reform of patent law since the Patent Act of 1952. Oil States assumes its vast significance because its outcome will determine, perhaps for decades, the litigation framework for all future patent disputes. Although widely hailed as a statute that aids inventors, the AIA has been subject to searching criticism that it amounts to “Dubious Patent Reform” driven by “The Myth of Patent Quality.” The case for the far-reaching reforms of the AIA rests on the common claim, made in the legislative history, that weak patent claims had routinely been approved under the earlier patent regime. But even if weak patents were a problem before the AIA, the 2011 legislation applies a sledge hammer where only a scalpel was warranted. This ham-handed response did more than threaten weak patents; it also undercut the safety of strong patents, since the procedure it instituted—inter partes review (IPR)—offers greater advantage to accused patent infringers than the traditional litigation process in district court. For this reason, parties accused of infringement have beaten a steady path to the Patent Trial and Appeal Board (Board or PTAB), where these cases are tried inside the U.S. Patent & Trademark Office (PTO).