Wall Street Journal Editorial: Patents and Property at the Supremes
This post originally appeared in The Wall Street Journal on November 26, 2017.
Can government bureaucrats vitiate private property rights without a jury trial and fair compensation? That’s the question the Supreme Court will consider on Monday in what could become a landmark patent case, Oil States Energy v. Greene’s Energy.
At issue is the inter partes review that Congress established with the 2011 America Invents Act to curb abusive patent litigation. Owners of low-quality patents—e.g., abstract ideas or processes with broad applicability—extort businesses with infringement lawsuits that are often cheaper to settle than fight. This can deter innovation. Inter partes review allows anyone to challenge a patent at any time. The Patent Trial and Appeal Board, composed of administrative judges appointed by the Commerce Secretary, then decides whether to grant a review and perhaps revoke a patent.