The Supreme Court agreed today to review the constitutionality of inter partes review, an adversarial forum at the Patent and Trademark Office for challenging the validity of an issued patent, in Oil States Energy Service, LLC v. Greene's Energy Group, LLC. The specific question to be addressed is:
Whether inter partes review-an adversarial process used by the Patent and Trademark Office (PTO) to analyze the validity of existing patents violates the Constitution by extinguishing private property rights through a non-Article III forum without a jury.
The Court's order can be found at https://www.supremecourt.gov/qp/16-00712qp.pdf. Given the Court's hostility to patent rights, shown by a decade of decisions weakening patents, a decision eliminating an avenue for invalidating patents seems highly unlikely. However, since a decision affirming inter partes as valid isn't needed to keep the forum available, the fact that the Court granted review may indicate at least some justices may be sympathetic to the Appellant.