The following guest post is by my FIU colleague Hannibal Travis, Professor of Law at FIU College of Law and this semester the Irving Cypen Visiting Professor of Law at University of Florida.
The Future of Intellectual Property and the Administrative State: Oil States v. Greene’s Energy
Efficient dispute resolution is something of a Holy Grail in intellectual property (IP). Several of the major innovations in the field over the past two decades chased it: WIPO domain name dispute resolution, the statutory license process for webcasters and digital downloads of cover songs, the introduction of an theory of induced infringement into copyright jurisprudence affecting online intermediaries, the evolution of copyright filters such as ContentID and Audible Magic CopySense, and the America Invents Act of 2011. The results have been mixed in many cases.
The question being presented to the Supreme Court this week is whether the Constitution limits the trend towards dispensing with the trappings of federal civil procedure in certain IP disputes. The Patent Trial and Appeal Board of the U.S. Patent and Trademark Office (PTO) has been considering more than 1,000 petitions per year, on average, for inter partes review (IPR) of patent claims that were not novel or that were obvious considering the prior art. Patent law specialists comb through voluminous filings citing often obscure technical publications and foreign patents in a way that would be too time-consuming and expensive if done for each of the 500,000 patent applications submitted annually.
While the cancellation of an improvidently issued patent is a relatively narrow issue, the broader questions of when an Article III court should review the validity of rights underlying a claim for money damages, and when a jury trial is available as of right for such a claim, will have broader implications. Most notably, the Court’s opinion
Comments
The decision to grant a patent is subject to review for cancellation. However, the process is slow and it is time consuming. Therefore, looking for other means to spead up the process and make it less litigious. Bashar H. Malkawi
Posted by: Bashar H. Malkawi | Sep 4, 2018 3:43:13 AM
Good post, except why on earth does it say that the question is whether “whether the Constitution limits the trend towards dispensing with the trappings of federal civil procedure?” The objections are over the lack of an independent, life tenured judge overseeing the proceedings as the Constitution requires for judicial matters and over the lack of a jury deciding the facts. I think those are more than “trappings of federal procedure.”
Posted by: biff | Nov 28, 2017 6:27:20 PM
Interesting post, one can reach the Oil States v. Greene’s Energy , here :
http://www.scotusblog.com/wp-content/uploads/2017/06/16-712-petition.pdf
Posted by: El roam | Nov 27, 2017 11:32:05 AM