Bonum Certa Men Certa

With Oil States Case Heard in the US Supreme Court, a New Justice's (Neil Gorsuch) Positions on Patents Expressed

Related: National Law Journal Believes That Gorsuch as Supreme Court Justice Would be Opponent of Patent Reform

Neil Gorsuch
Reference: Neil Gorsuch



Summary: The Patent Trial and Appeal Board (PTAB) is being decided on at the highest level (US Supreme Court) and the new arrival at the court weighs in on the subject, based on reporting and transcript from inside the court (the case officially began yesterday)

TODAY'S US Supreme Court is pro-patent reform. We have seen many decisions to that effect, especially in recent years, and with Scalia's death we have a Trump nominee/appointee added to the mix. Not much is known about him as far as patents go, so people are left to mostly speculate/interpolate based on past judgments.



Oil States (a PTAB case dealing with the abilities, such as inter partes reviews, to thwart or 'steal' so-called 'property' like patents) officially began yesterday as far as hearings go. There's no set deadline for this case's decision, but it is not imminent.

The corporate media (even in London) took note of it yesterday and so did Wall Street media. The coverage, however, isn't exactly great. It's not too accurate and may sometimes seem one-sided. Susan Decker's premise, for example (one she put right in her headline), is an old and famous lie. It says that PTAB controversy is about "tech versus pharma" rather patent trolls/lawyers (with low-quality patents) versus the rest of us. We recently saw this same falsehood disseminated by the corporate media of London [1, 2], which the EPO had incidentally paid. To quote Decker:

Tech companies like Google and Apple Inc. cheered in 2011 when Congress created a review system for deciding whether the federal agency that issues patents is getting it wrong.

Thousands of invalidated patents later, the Supreme Court is considering whether Congress got it wrong.

The high court hears arguments Monday on whether to put a halt to a system that lets companies go to the U.S. Patent and Trademark Office to challenge patents rather than relying only on courts. It’s designed to be a low-cost alternative to lawsuits, and the review system is popular with tech companies and retailers that get sued often by patent owners.

Critics call the review board a "death squad" because it uses a different legal standard than courts and is more likely to cancel a patent. Drugmakers such as AbbVie Inc., which rely on patents to fend off competitors, say the system violates their constitutional right to a jury trial.


The misleading and offensive term "death squad" (comparing judges on patent matters to executioners) is believed to have come from a disgraced/corrupt judge, Mr. Rader. Why does the media keep repeating this term? Decker even put it right inside her headline ("Patent ‘Death Squad’ Pitting Tech and Pharma Heads to Supreme Court").

Do we want a serious debate about this? One in which patents don't get "killed" or "survive"? One in which patents are not being called "property" which is "owned" or whatever? The article was composed using the terminology of the patent 'industry'. It impacts the readers' (mis)understanding of the subject at hand.

Looking directly at blogs of the patent 'industry', we are starting to see clues about where the hearings are going. The patent 'industry' will attempt "trial by media", so we need to watch and counter any falsehoods. According to Patently-O, finally we can see where Gorsuch stands on patents (he is relatively young and has no prior experience in this area). He said: "[W]e have a number of cases that have arguably addressed this issue already, like McCormick, for example, in which this Court said the only authority competent to set a patent aside or to annul it or to correct it for any reason whatever is vested in the courts of the United States."

Well, PTAB is a bit like a court, in a similar sense that BoA at the EPO has the authority to deliver enforceable decisions. PTAB has a chief judge, just like BoA has various technical judges. So what's the issue? Gorsuch should know that the issue at stake here is whether the government can, in general, regard patents to be "property" and then assert that it can violate so-called 'property' 'rights' (patents are neither, contrary to how Patently-O tries to spin it).

Patently-O has also just published this reasonably long article from Dmitry Karshtedt, who concluded as follows (with highlight on Gorsuch):

Returning to the public-private rights debate, Chief Justice Roberts discussed the Schor test and whether the multi-factor analysis of Schor is conducive to investment backed-expectations. Mr. Stewart contended that, whatever the test, PTAB adjudicates private rights because liability for past money damages are not involved. The question then came up whether the PTAB can adjudicate infringement, to which Mr. Stewart responded that probably not because money damages are involved. Justice Gorsuch then asked whether the PTAB can perhaps declare non-infringement, to which Mr. Stewart responded that there is no tradition of the PTO’s making that determination. Justice Gorsuch asked about the PTO’s tradition of cancelling patents, and Mr. Stewart’s response was that the issue is really about deciding patentability, which the PTO has been doing since 1836.

In rebuttal, Ms. Ho reiterated her point that Congress cannot condition a grant of a patent on taking away litigants’ structural rights and reinforced the point that appeals are not a sufficient form of Article III supervision. She ended with the point that, again, IPRs resolve disputes between two private parties.


There's so much spin there and the problem is often ill-defined. They try to assert that patents are a "property" (they are not) and that determining patentability is equivalent to verifying one's guilt in a scene of a crime. That's nonsense!

In the USPTO, based on another new article, PTAB says it "will not place the burden of persuasion on a patent owner [sic] with respect to the patentability" and instead leave petitioners/challengers to do so. To quote what is outside the paywall:

The Patent Trial and Appeal Board confirms that In light of the Aqua Products decision it will not place the burden of persuasion on a patent owner with respect to the patentability of substitute claims presented in a motion to amend

The Patent Trial and Appeal Board (PTAB) has released guidance in light of the Federal Circuit’s en banc Aqua Products opinion.


The very concept of amending patents that have already been granted seems odd to us. Once a patent has been granted, it is what it is. It can then either be defended or invalidated, not edited. In any event, PTAB bashers will throw at PTAB anything they can in an attempt to discredit it and thus influence the judges, especially Justices.

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