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Interpartes Review Unconstitutional?

Jim Ruttler, Patent Attorney

Posted Wednesday, January 28, 2015 by Jim Ruttler

The American Invents Act authorized the USPTO to create trials to invalidate patents – yes, the same patents the USPTO issued in the first place. This assault on patent rights has resulted in many patents being invalidated by administrative judges at the Patent Office. MCM was one such company that had its patents invalidated in one such proceeding instituted by HP. In response, MCM decided not only to appeal the decision but boldly request that the Federal Circuit deem the USPTO proceedings to be unconstitutional. The theory is this: patents are property rights and the Supreme Court has held that the question of whether a property right may be revoked lies within the exclusive province of the Courts, not government agencies. It is a pretty good argument and one that, if found convincing, could completely upend the USPTO trial courts.

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