CPIP Senior Scholars Ask Full Federal Circuit to Protect Basic Due Process Rights of Patent Owners in Inter Partes Reviews

On March 14, 2016, CPIP Senior Scholars Adam Mossoff, Sean O’Connor, Kristen Osenga, and Mark Schultz joined seven other law professors in filing an amicus brief in Ethicon v. Covidien asking the entire Federal Circuit to protect the due process rights of patent owners in inter partes reviews.

The America Invents Act provides that the Director of the USPTO decides whether to initiate an inter partes review and that the Patent Trial and Appeals Board (PTAB) then conducts that review. Nonetheless, the Director has delegated the decision to institute an inter partes review to the same PTAB panel that decides its merits. The amici argue that this delegation by the Director violates patent owners’ due process rights since patents are vested private property rights entitled to fair adjudication by an impartial decisionmaker.