Supreme Court Weighs Streamlined Patent Challenges
Oil States appealed its administrative loss to the United States Court of Appeals for the Federal Circuit, which is part of the judicial branch, arguing
that its constitutional rights had been violated by the tribunal procedure.
“And then suddenly somebody comes in and says, ‘Oh, want it re-examined, not in court but by the patent office.’”
He later suggested that the Supreme Court could uphold the procedure in the case before it
but “leave open the question of what happens if there has been huge investment.”
Chief Justice John G. Roberts Jr. appeared troubled by the tribunal procedure.
“What saves this,” she said of the tribunal procedure, is that “even a patent invalidity finding can be appealed to a court.”
But one member of the court’s liberal wing, Justice Stephen G. Breyer, expressed a concern.
Allyson N. Ho, a lawyer for Oil States, said there was a difference between re-examination, which
is the job of an executive-branch agency, and adjudication, which is the job of the courts.
He asked Christopher M. Kise, a lawyer for Greene’s Energy, whether his position was that “you’ve got to take the bitter with the sweet.”
The chief justice elaborated.
