Currently pending on the docket of the United States Supreme Court is the case of Cuozzo Speed Technologies, LLC, v. Michelle K. Lee, Under Secretary of Commerce for Intellectual Property and Director, Patent and Trademark Office, No 15-446, on petition for writ of certiorari. At issue is whether the Federal Circuit should construe claims in patent cases arising from the Patent Trial and Appeal Board (“PTAB”) the same as claims in cases arising from the district courts. A second issue, a matter of horizontal separation of powers, is whether the Federal Circuit correctly held that PTAB decisions to institute inter partes review are judicially unreviewable even if the PTAB exceeds its statutory authority in instituting such proceedings.
On its face, the first issue would seem like a no-brainer: to have any consistency in the federal patent system – a basic tent of the rule of law – of course the same reviewing court should treat the same language in the same claim the same way, regardless of who brought the case and where. Yet from the start, under the America Invents Act’s new inter partes review (IPR) process, the result has been exactly the opposite. Because Congress intended IPR to be a less expensive surrogate for litigation, however, it seems that the standards should be the same.
For a look at the arguments in favor of ensuring that patent claims are consistently construed in both cases and at the arguments of petitioner on the second issue, see the linked blog by the same author.