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IPR Proceedings Reviewed by Supreme Court

Jim Ruttler, Patent Attorney

Posted Sunday, February 14, 2016 by Jim Ruttler

The America Invents Act created new proceedings at the Patent Office to challenge issued patents called inter partes review proceedings (IPR). These proceedings can be brought by private parties to challenge whether a patent should have been issued. Since inception, IPRs have been popular because of the speed and high likelihood of success for invalidation. Meanwhile, patent owners and innovators have protested these proceedings as being unfair, unjust, and even unconstitutional.

Well, the day of reckoning has finally arrived for the Patent Office. The Supreme Court has recently accepted one of the first cases to reach this level of the judicial process. In Cuozzo, the Supreme Court will be reviewing the policy of the patent office to interpret claims using the broadest reasonable interpretation standard. Many expect the Patent Office to be taken to task over the use of this standard, which is inconsistent with the Phillips standard used by the Courts when reviewing issued patents and inconsistent with the presumption of validity enjoyed by issued patents.

Cuozzo is just the tip of the iceberg as there are more coming, such as Cooper which the Supreme Court is being asked to accept on the heals of Cuozzo. In Cooper, the Supreme Court is being asked to declare the entire IPR proceedings as being unconstitutional. This is on the basis that the Patent Office is invalidating private property rights, patent rights, which activity has been deemed by past Supreme Court decisions to be entirely within the purview of the judicial system.

If the Supreme Court accepts Cooper along with Cuozzo, it is highly likely that the IPR proceedings will be substantially limited or scrapped altogether, which would be a very positive development for innovators and patent owners.

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