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5 Things To Watch As High Court Tackles AIA Reviews


The day of reckoning is nigh for America Invents Act reviews as the U.S. Supreme Court will hear arguments Monday to determine if they are unconstitutional. Here’s what attorneys will be watching for as the justices take up a case that could abolish a key tool for invalidating patents.

The AIA's inter partes review system has been used to challenge thousands of patents since it was established in 2012, but it could disappear in an instant if the high court rules that the Patent Trial and Appeal Board has no constitutional authority to find patents invalid.

Such a decision would be a shock to the patent system, shifting the balance of power to patent owners by making patents harder to invalidate. It could also create new issues for courts and litigants to grapple with, including whether patents invalidated by the board would spring back to life and whether other processes for challenging patents are also unconstitutional.

The way the justices view the system could be evident in their questions, which may indicate which way they are leaning, attorneys say.

"If the kind of questions they're asking are about whether these Article I judges can find a patent invalid, that is good for the petitioner" and indicates the court may view AIA reviews as constitutionally suspect, said Gene Paige of Keker, Van Nest & Peters LLP.

However, if the tone of the questions is, "The patent office is going back and cleaning up its mistakes, and what's wrong with that?" that would suggest that AIA reviews may survive, he said, since "that's a much more benign view of what's going on."

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