Supreme Court Hears Oral Arguments in Oil States Energy Services, LLC. V. Greene’s Energy Group, LLC

November 28, 2017

Supreme Court Hears Oral Arguments in Oil States Energy Services, LLC. V. Greene’s Energy Group, LLC by Stephen G. Kunin and W. Todd Baker

In a widely anticipated case, yesterday, the Supreme Court heard oral arguments in Oil States Energy Services, LLC. V. Greene’s Energy Group, LLC on the question of whether AIA administrative trials (“AIA trials”) are Constitutional. While the justices appeared split on whether the AIA trials violate the Constitution’s separation of powers between the authorities of Article I and Article III adjudication bodies of first review to invalidate granted patents, it was readily apparent that Congressional action in concert with USPTO rule and practice changes may be needed to address the concerns raised at oral argument regarding the need to improve fairness and balance in the AIA proceedings. The Article III right to jury trial question appeared to be cabined to the subject of patent infringement and the right to money remedies for infringement.

There appears to be disagreement among the justices whether patents are private or public property rights, especially when viewed under a quiet title theory where the patents have been in force for many years and investment expectations have been settled. The justices seemed unimpressed with distinctions between reexamination proceedings and administrative trials when deciding the issue of Constitutionality. Some justices were sympathetic to the correction of patents argument, limited to unpatentability due to prior art patents and printed publications in IPR, but expressed concern about the lack of fairness in how the PTAB conducts the proceedings. While the justices’ interventions during oral argument were revealing it is difficult to predict the outcome. Stay tuned.