PHIL HAMBURGER: PTAB, Patents and the Constitution.

Tomorrow, the Supreme Court will hear arguments in Oil States vs. Greene’s Energy Group, et al. on whether the Patent and Trademark Office, acting through the Patent and Trial Appeal Board (PTAB), can decide the validity of existing patents. The question, in particular, is whether the PTAB is unconstitutionally extinguishing private property rights in a non-Article III forum without a jury. At stake, therefore, is a range of vital issues, including patents, property, and the right to be heard in a real court, with a jury.

In the debate over this case, what has not been sufficiently understood is the significance of the government’s granting property in form of a patent. This was a form of grant that ideally could be invalided only by a court of record.

I agree that patents are property, and that only a court — not an administrative tribunal — can constitutionally deprive people of property.