Supreme Court May Let IPRs Continue

Last week, the Supreme Court heard oral arguments in Oil States Energy Services v. Greene's Energy Group—a case that addresses whether inter partes review unconstitutionally usurps the federal courts' authority to adjudicate the validity of patents. An examination of the Justices' questions provides hints of how they are thinking and suggests that IPRs may survive constitutional review.

Justices Ginsburg, Sotomayor, and Kagan all appeared to agree the PTO had the authority to review its decision to issue a patent, but focused on whether IPR was a permissible way to do so. Generally speaking, they focused on the similar purpose of IPRs and reexamination (i.e., review patents the PTO previously issued) and not on the differences in procedure.