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Cuozzo SCOTUS Decision BRI is OK

Jim Ruttler, Patent Attorney

Posted Tuesday, June 21, 2016 by Jim Ruttler

Yesterday the Supreme Court decided Cuozzo and held that the broadest reasonable interpretation is fine during inter partes review proceedings. Cuozzo had wanted a more narrow standard during the proceedings, which are well known for being unfavorable toward patentees.

What standard of review is used during the proceedings is really irrelevant. Once your patent is pulled into one of these proceedings, the Patent Office is most likely going to invalidate most if not all of your patent - under whatever standard they apply.

The real issue here is that these PTO proceedings are unconstitutional because they take private property (patents) outside of the court system. If you get a patent, then the law since late 1800’s says that it is your private property. As private property, it can’t be revoked by the executive branch and is only subject to being taken away through the judicial system.

Unfortunately for the Patent Office, the Cuozzo win will likely be short lived as two new cases are up for review by the Supreme Court challenging the constitutionality of the entire inter partes review framework: Cooper and MCM. Cooper asks the Court to limit any Patent Office decisions as being advisory to a federal court judge. MCM asks the Court to outright invalidate the entire inter partes review.

We should know within a couple of months whether the IPR framework will remain or whether it will be scaled back.

If it isn’t scaled back, then there are many options for patent owners to minimize the downside risks of IPRs. We’ll save those for another post in the event that I’m wrong and IPRs are maintained by the Courts.

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