Confusion And Delay

In Oil States Energy Services., LLC v. Greene's Energy Group, LLC, Justice Thomas, writing for a 7-2 majority of the Supreme Court, explained that inter partes review proceedings do not violate Article III or the Seventh Amendment of the Constitution. 138 S. Ct. 1365 (2018). But his opinion for the majority invited confusion and delay, upon the brink of which the Federal Circuit now stands. This stems from Oil States' failure to explicitly challenge in the broad question its certiorari petition presented the retroactive application of inter partes review to its patent—a patent that issued before the procedure existed. Oil States did not contest that cancellation of its patent through inter partes review in such circumstances was a putative "taking without just compensation" and denial of due process. The Supreme Court suggested as much, yet refrained from commenting further. Id. at 1379.