FDAnews Drug Daily Bulletin
Pharmaceuticals / Commercial Operations

Supreme Court to Review the Constitutionality of the PTO’s Inter Partes Review

June 21, 2017

In a case that may change how drug companies deal with patent infringement cases, the U.S. Supreme Court agreed to consider the constitutionality of the PTO’s inter partes review process, which allows the validity of patents to be challenged based on whether their claims are considered obvious at the time they are awarded.

The high court agreed to hear arguments from Oil State Energy Services, which held a patent on fracking and mining equipment that was found to be invalid by a three-judge panel of the PTO’s Patent Trial and Appeal Board. The PTAB’s 2015 decision was subsequently upheld by the Federal Circuit Court of Appeals.

The Justice Department, filing a brief in opposition, said that patents are quintessential public rights, and the basic purpose of the PTAB’s inter partes review, as tasked by Congress, is to re-examine the agency’s previous decisions. Oil State argued that patents are considered property rights, and cannot be taken away without a jury trial, as guaranteed by the Seventh Amendment of the Constitution.

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