SAP America, Nautilus, and Others Brief Supreme Court in Support of Constitutionality of Inter Partes Reviews

Published October 25, 2017

Various companies and trade associations joined today as Amici in the U.S. Supreme Court in support of the “inter partes review” procedure for reexamining patents and canceling ones that were issued in error, in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, No. 16-712 . The software company SAP America, Inc. was joined by companies in the biopharma, semiconductor, and fitness equipment fields, and trade associations for financial services and electronic transactions products.

Reexamining patents for errors by the Patent Office has been a job for the Patent Office since 1980. In 1980, Congress authorized the Patent Office to reexamine issued patents to make sure they were not granted in error. The Patent Office has reexamined patents more than 10,000 times since then. While the procedures differ, inter partes reviews are substantively identical to reexaminations. They apply the exact same law on the exact same issues and result in the exact same certificates canceling, amending, adding, or confirming patent claims. Since 1980, patent applicants have consented to such substantive reexamination of the patents they seek as a condition for maintaining the patent. This does not violate the Constitution. On the contrary, imposing such an on-demand maintenance condition on patents implements the Constitutional authority to grant patents “for limited Times” to promote “the useful Arts.”

The Court will hear argument on November 27. Klarquist attorneys Andrew M. Mason and John D. Vandenberg are on the brief.

Link to the brief.