Takings Challenge to IPR Fails
Since the Supreme Court’s decision in Cuozzo
Speed, there has been speculation that there may be an
opportunity to attack AIA trials on different constitutional
grounds. Most recently, it was argued that cancellation of an
improvidently granted patent constituted a 5th Amendment
“taking.”
In Celgene Corporation v. Peter, perhaps not
surprisingly, the Federal Circuit held that "IPRs do not
differ significantly enough from preexisting PTO mechanisms for
reevaluating the validity of issued patents to constitute a Fifth
Amendment taking."
While IPRs do not differ significantly from reexamination in
scope, CBM proceedings do.
In Celgene, the Court explained that in determining
whether the retroactive application of IPRs to pre-AIA patents is
an unconstitutional taking, it considered whether IPRs differ from
the pre-AIA review mechanisms significantly enough, substantively
or procedurally, to effectuate a taking. The Court concluded
