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Patent law getting its day before the U.S. Supreme Court

The issue of due process in the world of patent law is coming up for review at the U.S. Supreme Court next week. Justices are due to hear arguments in a case that raises questions about the constitutionality of the 2012 America Invents Act.

As one recent case explained, Congress passed the AIA to create a new administrative procedure for dealing with patents called inter partes review. What the law does is make it possible for third parties to ask the U.S. Patent and Trademark Office to revisit a patent already granted, and perhaps cancel it if that's deemed appropriate.

Prior to the law being enacted, the job of challenging and protecting patents was handled solely through the courts. That could be slow and expensive and AIA supporters believed inter partes review would speed things up. Not surprisingly, patent challengers tend to like inter partes review. Patent holders, however, are not so enamored with it. A decision by the high court on whether the objections are valid is expected sometime next year.

Patent law is complex, but here is how some observers boil down the arguments of this issue.

On the side of the supporters of the AIA is the claim that patent handling is constitutionally assigned to the purview of the administrative branch of government. As such, Congress has the power to come up with new administrative methods if it feels they are needed. And many argue that as fast as the world is moving now, administrative change is necessary.

However, those who oppose IPR say patents are property and the Constitution says Congress can't pass any law that takes away private property without due process through the courts. In that light, they argue, the processes set up by the AIA are unconstitutional.

Most would agree that the current system for managing patents in the U.S. is not without flaws. How the Supreme Court is likely to decide the question before it is impossible to predict. But more than one observer notes that the justices are sure to be keenly attentive to the arguments because of the implications the final decision will reflect on due process.

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