September 3, 2017

Federal Circuit’s Amicus Brief in Oil States

Although the Federal Circuit already passed on the constitutionality of Inter Partes Reviews, considering some of its recent decisions, it appears that the Federal Circuit questions the competence of the PTAB to conduct adjudicative proceedings.

In Nidec Motor Corporation, discussed here, Judges Dyk and Wallach questioned the Patent Office’s court packing to achieve a desired outcome.  A few days later, in Ultratec, discussed here, the Federal Circuit questioned the Patent Office’s conduct of a proceeding, stating that a “reasonable adjudicator” would have wanted to review this evidence, and implying that the Patent Office was not a reasonable adjudicator.

Even if it turns out to be constitutional for the USPTO to conduct IPR and PGR proceedings, it appears that at least the Federal Circuit has lost confidence that they should.  Is it sending a signal to the Supreme Court?