Constitutionality of Patent Trial and Appeal Board Challenged

Next week the Supreme Court will hear a challenge to the Patent Trial and Appeal Board’s procedure. The case, Oil States Energy Services v. Greene’s Energy Group, involves the claim that a patent is private property, and taking private property is something only a court can do, not a government agency. Writing in the New York Times, Eduardo Porter notes that in the five years since the board  began its work as a result of the America Invents Act, it has saved consumers millions, rejecting dubious claims over such things as technology to clean up polluted groundwater and wastewater, podcasting, and a transit technology that Los Angeles wants to introduce that is modeled on generic systems like New York’s E-ZPass. The board has also saved companies more than $2 billion in legal fees alone, according to Joshua Landau, patent counsel at the Computer and Communications Industry Association, because it offers a cheap avenue to challenge patents of doubtful validity. According to Mark Lemley, a law professor at Stanford, the board hasn’t exactly made patent trolls disappear, but it has pared down their ambitions. “Now they sue and ask for $50,000 rather than $1 million,” he says.