How will other constitutional concerns affect IPRs?
Oil States addressed constitutionality under Article III and the Seventh Amendment, but it did not directly address the other takings and due process issues raised by the Justices. Those issues will need to be addressed in future cases. However, many PTAB judges attended the oral arguments in November, and many more have listened to the argument or read the transcript. The sense in the profession is that the PTAB judges are acutely aware of the concerns raised by the Justices and they are working to quell those concerns. For example, it appears that the PTAB is now more willing to grant parties additional briefing, especially where denying that briefing might raise a due process issue. And since Chief Judge Ruschke has been at the helm, he has not expanded a panel to overturn an earlier institution decision. New Patent Office Director Iancu could also clarify that he will not use stacking as a way to "make sure [his] policies, [his] preferred policies are enforced," which is what Oil States' counsel argued predecessors had done.1
Footnote
1 Oil States Energy Services LLC v. Greene's Energy Group, LLC, 16-712, Supreme Court, slip op. at 65:9-11; see Yissum Research Development Co. v. Sony Corp., No. 15-1342, Oral Arg. Recording at 47:20 – 48:20 (Fed. Cir. Dec. 7, 2015), available at http://oralarguments.cafc.uscourts.gov/default.aspx?fl=2015-1342.mp3 (USPTO asserting that reconfiguring panels was a practice to ensure that the Director's policy position is being enforced by the panels).
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