©2018. Published in Landslide, Vol. 10, No. 5, May/June 2018, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.
On April 24, 2018, in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC (No. 16-712), the Supreme Court held that the U.S. Patent and Trademark Office’s (USPTO’s) provisions for inter partes review (IPR) of patents does not violate the Constitution by having a non–Article III tribunal determine patent validity. During oral argument, Justice Kennedy asked the patent owner’s counsel which of the Court’s precedents best supported its position that the IPR statute violates Article III. In response, the patent owner’s counsel posited Northern Pipeline or one of the bankruptcy cases. Kent Richland argued before the Supreme Court in Stern v. Marshall, the most recent bankruptcy case, in which a 5–4 majority of the Court held that because bankruptcy courts were not Article III courts, it was unconstitutional for them to issue final judgments in common law disputes between private parties. Based on his experiences and insights from the Stern case, Kent shared his thoughts and predictions on how the Article III issues could play out in Oil States. A transcript of that discussion, which has been edited for length, follows.
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