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Are Inter Partes Review Proceedings Constitutional? The Federal Circuit Is Not Yet Ready To Decide, PTAB Litigation Blog

May 2017

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On May 11, 2017, with six of its twelve active judges authoring or joining separate opinions, the Federal Circuit denied a petition for an initial hearing en banc which asked the full Court to address the question "whether a patent right is a public right." In this case, Cascades Projection LLC v. Epson America, Inc., the petitioner (Cascades) contends that patent rights are not public rights and that the Patent Office therefore cannot revoke issued patents—arguing that inter partes review ("IPR") "in its present form violates Article III of the United States Constitution (Separation of Powers), unless [IPR] outcomes are deemed advisory in the trial courts."

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