Volume 16
Issue 2
Summer '18

Patents in the Political Branches

Written By: Justin Burnam

Abstract

The Supreme Court granted certiorari in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC to decide if administrative proceedings called inter partes review (IPR) violate the Separation of Powers by canceling patents in the executive branch rather than in Article III courts. Whether analyzed under the Supreme Court’s precedents or under originalist theory, IPR survives this constitutional challenge. As a doctrinal matter, IPR satisfies the Supreme Court’s “public rights” exception. As an originalist matter, the Founding Generation understood patents as discretionary privileges—or at most as civil property rights—but not as “core private rights” requiring Article III adjudication. Legislation remains the proper avenue for proponents of strong patent rights to modify IPR to that end.

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