Academic journal article Harvard Law Review

Article III - Judicial Power - Public Rights Doctrine - Oil States Energy Services, LLC V. Greene's Energy Group, LLC

Academic journal article Harvard Law Review

Article III - Judicial Power - Public Rights Doctrine - Oil States Energy Services, LLC V. Greene's Energy Group, LLC

Article excerpt

Article III protects "[t]he judicial Power of the United States" from political influence by guaranteeing lifetime salaries and tenure to judges who exercise that power, (1) but it does not specify which adjudications may be heard only in Article III courts. (2) Because nearly any determination of facts and application of law could be styled as "judicial," requiring every federal adjudication to occur in court would impossibly constrain executive officials in conducting routine tasks. (3) At the same time, allowing federal adjudications outside of court risks rendering Article III's protections irrelevant. (4) To navigate this tension, the Supreme Court distinguishes between "public" and "private" rights. (5) Without "definitively explaining]" the distinction between the two, (6) the Court has blessed non-Article III resolution of public rights, which historically "ar[o]se between the Government and persons subject to its authority," (7) while insisting on varying levels of Article III involvement for "private" questions involving "the liability of one individual to another under the law." (8) Last Term, in Oil States Energy Services, LLC v. Greene's Energy Group, LLC, (9) the Court approved as "squarely within the public-rights doctrine" an administrative scheme by which a federal agency may cancel previously issued patents following adversarial proceedings between patent holders and private challengers. (10) Its analysis, like the dissent's, turned in significant part on its understanding of eighteenth-century English attitudes toward patent grants and revocations. (11) Though Oil States was, in some ways, a predictable outcome of the Court's prior formulations of the public rights inquiry, it failed to justify its increased historical granularity by reference to the interests actually at stake: individual fairness, separation of powers, and effective governance.

The United States Patent and Trademark Office (USPTO) is responsible for granting patents for novel claims. (12) Because of the vast number of patent applications (13) and limited information available to USPTO when it first reviews them, Congress in 2011 created "inter partes review" (14) (IPR), which allows USPTO to cancel a patent following a challenge to its validity. (15) Once a petitioner seeks IPR and a patent's owner responds, the USPTO Director decides whether "the petitioner would [likely] prevail with respect to at least 1 of the claims challenged." (16) If so, administrative patent judges sitting on the Patent Trial and Appeal Board (17) (PTAB) conduct a "trial," complete with discovery and on-the-record hearings. (18) PTAB then issues a final written decision upholding or cancelling the patent within one year. (19)

In 2001, Oil States Energy Services, LLC ("Oil States") patented a "lockdown mechanism" for drilling equipment. (20) In 2012, it sued Greene's Energy Group, LLC ("Greene's Energy") in the Eastern District of Texas for infringing the patent. (21) Greene's Energy petitioned USPTO to institute IPR, (22) arguing that the patent was invalid because two of its claims were not novel. (23) Though the district court denied Greene's Energy's motion for summary judgment, (24) PTAB determined the claims were unpatentable and cancelled Oil States' patent. (25)

Oil States sought review in the United States Court of Appeals for the Federal Circuit, arguing that its patent was valid and that IPR violated Article III and the Seventh Amendment. (26) The Court of Appeals summarily affirmed, bound by another Federal Circuit case decided while Oil States was pending. (27) That case rejected similar challenges to IPR and reasoned that a patent's origin in a federal regulatory scheme made it a matter of public right. (28)

The Supreme Court affirmed. Writing for the Court, Justice Thomas (29) argued that IPR fell "squarely within" the public rights doctrine's historical core of "matters 'arising between the government and others, which from their nature do not require judicial determination and yet are susceptible of it. …

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