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Ron Cahill Analyzes Oral Argument in Supreme Court Case Oil States in IPWatchdog

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11.29.2017

Ron Cahill, a partner in Nutter’s Intellectual Property and Litigation Departments and chair of Nutter’s Intellectual Property Litigation practice group, commented on Oil States Energy Services, LLC v. Green’s Energy Group, LLC in IPWatchdog. In the article, “Predicting Oil States after Supreme Court Oral Arguments,” Ron said, “Following the oral argument in Oil States, it still seems likely that the IPR procedures will stand, although possibly with some changes to ensure compliance with constitutional concepts of due process. A number of Justices were skeptical of the lines the Petitioner was trying to draw around IPRs being an unconstitutional exercise of judicial power by the executive branch, while other Patent Office proceedings, such as reexamination or interference proceedings, are not. When the Petitioner argued that the difference in IPR proceedings that made them problematic was the high level of third party involvement, the Justices came back with other examples of disputes between parties that are resolved by administrative bodies without violating the Constitution.”

Ron further elaborated, “According to the government, IPRs are nothing more than the Patent Office continuing to ensure that it only issues patents that are novel and non-obvious. Some Justices, especially Justices Gorsuch and Breyer, worried about patentees’ settled expectations and investments made in their patented technology, only to have the government take back the patent. Using the words of the Chief Justice, the government argued that a patentee has to take the bitter with the sweet—in order to be granted a patent, the patentee has to understand that there is some chance that the Patent Office will review it and take it away. Regarding the process, some Justices expressed concerns about applying IPR procedures to patents that had granted before the AIA became law and the ability of the PTO to ‘stack’ rehearings with expanded panels of APJs. While IPRs are likely to stay, issues such as these may need to be addressed in IPRs going forward.”

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