Anti-innovation patent tribunal is begging SCOTUS to check its power

Lost among the August doldrums was a demonstration by a group of inventors outside of the U.S. Patent and Trade Office (PTO) in Alexandria, Va.

In early August, several inventors and their kids gathered with signs, news cameras, and an ample amount of security — watching them, not protecting them — while they burned their U.S. patents. The inventors were demonstrating against the Patent Trial and Appeal Board (PTAB) an Administrative Tribunal that has run amok.

In the upcoming Oil States vs. Greene’s Energy Group, et al, the Supreme Court will decide the constitutionality of this tribunal. They will answer the question: Does this abusive tribunal, that effectively has no limits and no constraints, have the constitutional authority to take a patent away from an inventor?

PTAB, a relatively new Article 1 tribunal at USPTO, is the innovation economy’s worst nightmare. It has been ending patents at a rate so high that several prominent people have called it a “Patent Death Squad.” If that wasn’t bad enough, the USPTO recently acknowledged that the former director would stack the panels until the vote came out the way that she wanted.

Judge Taranto:  And, anytime there has been a seeming other-outlier you’ve engaged the power to reconfigure the panel so as to get the result you want?

PTO:  Yes, your Honor.

Judge Taranto:  And, you don’t see a problem with that?

PTO: Your Honor, the Director is trying to ensure that her policy position is being enforced by the panels.

It is one thing to cover up a corrupt system, but quite another to freely brag about its true nature. It isn’t just in court though, the USPTO has patted itself on the back via Twitter about expanding the panel’s 100 judges to 270 judges.

The patent in question in the Oil States case is oil-fracking technology that reduces wellhead degradation due to the buildup of pressure during hydraulic fracking. But, the case may as well be about the government taking away someone’s house without a jury trial. Or, the way that I see it, taking away the glimmer is my young daughter’s eye that she can be the next greatest inventor.

You can invent, you can get a patent, you can build a company, but with the PTAB’s power-mongering, no inventor can be assured their patent means anything. And, that’s the issue the Supreme Court will solve when they rule the Article 1 Tribunal is unconstitutional.

Read more of this The Hill op-ed by Charles Sauer by clicking here.

Photo: Getty