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ARTICLE · 14 SEPTEMBER 2017

Sovereign Immunity At The PTAB A Temporary Phenomena?

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In Oil States, the "trial argument" is made to distinguish IPR proceedings from patent reexamination.

United StatesLitigation, Mediation & Arbitration
Scott A. McKeown
Scott A. McKeown
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Oil States/CAFC to Unravel "Litigation" Premise

Sovereign immunity from proceedings of the Patent Trial & Appeal Board (PTAB) has become inextricably linked with the Oil States debate now before the Supreme Court. That is, the 7th amendment argument in Oil States and the 11th amendment argument for sovereign immunity at the PTAB are both tied to the same basic, threshold premise — IPR is a trial proceeding akin to an Article III lawsuit.

In Oil States, the "trial argument" is made to distinguish IPR proceedings from patent reexamination. It is argued that because an IPR is more trial-like compared to the earlier, examination based system, a jury trial is now required, consistent with the 7th Amendment.

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