In its long-awaited Oil States decision, the United States Supreme Court today held that the Constitution does not preclude the United States Patent and Trademark Office (USPTO) from reviewing the validity of issued US patents. Oil States Energy Servs., Inc. v Greenes Energy Group, LLC, 584 U.S. ___, No. 16-712 (2018). In a 7-2 decision authored by Justice Thomas, the Court rejected the argument that patents are private rights subject to revocation only by Article III courts, holding instead that patents are public rights subject to revocation by the USPTO:

This Court has recognized, and the parties do not dispute, that the decision to grant a patent is a matter involving public rights—specifically, the grant of a public franchise. Inter partes review is simply a reconsideration of that grant, and Congress has permissibly reserved the PTO’s authority to conduct that reconsideration. Thus, the PTO can do so without violating Article III.

The Court distinguished its own earlier decisions on the basis that they turned on “the statutory scheme that existed at that time,” and did “not resolve Congress’ authority under the Constitution to establish a different scheme.”

In a concurring opinion joined by Justices Ginsburg and Sotomayor, Justice Breyer cautioned that the “the Court’s opinion should not be read to say that matters involving private rights may never be adjudicated other than by Article III courts, say, sometimes by agencies.”

And, in a dissenting opinion joined only by Chief Justice Roberts, Justice Gorsuch sympathized with patentees, arguing that, while “[c]eding to the political branches ground they wish to take in the name of efficient government may seem like an act of judicial restraint,” the decision risks eroding the judiciary’s ability to “ensur[e] the people today and tomorrow enjoy no fewer rights against governmental intrusion than those who came before.”