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11/27/2017

Philip Hamburger on Oil States v. Greene's Energy
Michael Ramsey

Along with Carpenter v. United States (discussed here yesterday; argument on Wednesday), a second important constitutional case at the Supreme Court this week is Oil States Energy Services, LLC  v. Greene's Energy Group, LLC, argued today.  At Notice and Comment, Philip Hamburger has this historically oriented discussion: PTAB, Patents, and the Constitution.  From the introduction:

The question [in Oil States] is whether the PTAB is unconstitutionally extinguishing private property rights in a non-Article III forum without a jury. At stake, therefore, is a range of vital issues, including patents, property, and the right to be heard in a real court, with a jury.

...

In the seventeenth-century, the Privy Council had invalidated patents for inventions and thus had evaded the regular courts. And it is not unsurprising that, amid royal assertions of absolute power, the Privy Council thus challenged what were understood as property rights. But this soon became a constitutional anomaly, and in the eighteenth-century the Privy Council gradually relinquished its power to recall patents. Thus, notwithstanding the Privy Council, patents remained, in the ideals of the common law, grants made of record, which were vulnerable only in courts of record.

It is therefore no small matter that, since the adoption of the Constitution, Congress has authorized the grant of “patents.” The Constitution authorizes Congress to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The use of the word “patent” echoes the Constitution’s words about “securing” an “exclusive right.” The Constitution evidently was speaking about a right to property—a sort of right protected by the courts. And Congress’s use of the phrase “letters patent” in 1790 and later is powerful evidence as to how the Constitution’s authorization was understood at the founding and for a long time thereafter.

Patents were grants of property rights—rights that could be invalidated only in the courts.

(Via Instapundit).