On April 24, 2018, the US Supreme Court issued its opinion in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC (available here). The Court held that inter partes review is constitutional and violates neither Article III nor the Seventh Amendment:
Inter partes review falls squarely within the public-rights doctrine. . . . [T]he decision to grant a patent is a matter involving public rights—specifically, the grant of a public franchise. Inter partes review is simply a reconsideration of that grant, and Congress has permissibly reserved the PTO’s authority to conduct that reconsideration. Thus, the PTO can do so without violating Article III.
Because the determination to grant, and therefore reconsider that grant, is a matter involving public rights, it does not need to be adjudicated in an Article III court. The Court further stated that it has “recognized that within the scope established by the Constitution, Congress may set out conditions and tests for patentability. We conclude that inter partes review is one of those conditions.” The Court rejected the argument that inter partes review violates Article III because it shares “every salient characteristic associated with the exercise of judicial power”—the Court “has never adopted a ‘looks like’ test to determine if an adjudication has improperly occurred outside of an Article III court. The fact that an agency uses court-like procedures does not necessarily mean it is exercising the judicial power.”
The Court summarily dismissed petitioner’s Seventh Amendment argument: “Because inter partes review is a matter that Congress can properly assign to the PTO, a jury is not necessary in these proceedings.”