We have previously written about the scope of patents eligible for CBM review, including the PTAB’s inconsistent approaches in determining whether patents qualify for CBM review and the Federal circuit’s narrowing of the eligibility standard employed by the PTAB. On June 6, 2017, a divided Federal Circuit issued an order in Secure Axcess denying petitions for rehearing en banc. By declining en banc rehearing, the Federal Circuit may have placed a stamp of finality on the scope of CBM review.
For the second time in less than a month, the U.S. Supreme Court on June 12, 2017 granted certiorari in a case involving inter partes review. In Oil States v. Greene’s Energy Group, the Court has agreed to decide whether administrative patent trials, launched in 2012 by the America Invents Act, are Constitutional. The case will decide if the AIA patent review program, which has resulted in over 1,500 final decisions declaring some or all challenged claims unpatentable, remains viable, or whether validity challenges must be heard by the district courts. A ruling that AIA patent trials are unconstitutional would result in substantial change to the current patent litigation landscape and strategy.