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Even in patent law, which is often thought to be exceptional, autonomous, forward looking, and utilitarian in its orientation,4 traditional legal concepts play a critical role. A conceptual distinction determined the result in the most-discussed patent case of the term, Oil States Energy Services, LLC v. Greene’s Energy Group, LLC. 5 The case turned on the question whether patents are private or public rights. That distinction has girded the architecture of common-law jurisprudence since the seventeenth century,6 and its antecedents can be traced all the way back to ancient Roman jurisprudence.7 Ultimately, the majority ruled that patents confer public rights for Article III purposes because they result from a government-issued franchise.8 The idea of a franchise originates in early Norman law of the eleventh and twelfth centuries. The result in Oil States therefore turned on legal concepts that occupied Justinian,9 Matthew Hale,10 William Blackstone,11 and other jurists who never encountered a light bulb, much less artificial intelligence.

The Court’s use of the concept of public rights in Oil States has profound implications not only for patent law but also for admiralty and maritime law,12 bankruptcy,13 federal regulation of employment contracts and other commerce,14 native tribal sovereignty,15 and other areas of law that implicate both private rights and the administration of federal law.16 As the Court affirmed in Oil States, patents are private property rights for many purposes, and patent disputes are like tort disputes. But patents are also governed by a substantial administrative apparatus, and the issuance of a patent is like a public grant.17 The ruling suggests that Congress may bring private property rights within the public rights exception to Article III jurisdiction and the Seventh Amendment if those rights exhibit certain public features.

Federal government debt is rising to dangerous and unprecedented levels. Federal debt held by the public now tops $26 trillion, which is almost $200,000 for every household in the nation. At almost 100 percent of gross domestic product (GDP) and rising, the debt will soon reach levels never seen in our nation’s history.

The growing debt is imposing large burdens on current and future taxpayers, while also increasing the risks of macroeconomic instability and financial crises. Compared to GDP, the debt has already surpassed a threshold where it likely undermines economic growth.

Restoring power to the states is a constitutional solution that will help restore fiscal sanity.

The late constitutional scholar James McClellan described federalism as a principle that the American Founders had woven “into the constitutional fabric” of the nation. Unfortunately, for decades, that federalist fabric — whose threads strongly supported a division of power between the national and state governments — has been badly torn. It is not just the largesse of the federal government, but also regulatory edicts and efforts to undermine key state protections, that place the future of federalism in danger. Restoring federalism is possible, but only with concerted efforts now.

Science magazine recently published an article, linking to a preprint of a paper on political violence in America, with the clickbait headline that nearly half of Americans believe there will be a civil war in the United States in the next few years. Although the picture of neighbors fighting neighbors certainly garners attention, it is not the reality in America, even if the political elite — including politicians, pundits and the media— have everything to gain by such a portrayal.

Despite a best-in-class online panel for the survey underlying the paper, a large portion of the data cannot be credibly interpreted due to a clumsy question-drafting flaw. Best practices in survey writing dictate an equal number of positive and negative response options. However, in a series of questions focused on extreme views, Americans were given three nuanced ways to agree, just one absolute option to disagree, and no option for admitting that they didn’t have enough knowledge to answer — naturally leading to an overstatement of agreement.

How we describe such developments matters. After all, words have consequences. Unfortunately, some of the language used to analyze the global democratic recession is having precisely the wrong effect. The term “backsliding” – which has contributed to a curious passivity among pro-democracy forces – is a case in point.

The world is not moving “back” toward some regimes familiar from the past, nor even toward dynamics and circumstances that we have seen before and can easily comprehend. The conventional wisdom has long been that, while democracies make mistakes, they also learn from those missteps and adjust accordingly – a feature that sets them apart from all other political systems. But authoritarians have now shown that they, too, can adapt, learning from their own mistakes, those of their antecedents, and their peers.

AS IDEOLOGICAL POLARIZATION DEEPENS AND CIVIC DISCOURSE continues to degrade, there is a growing sense in America today that something in our political system is broken. Theories about the cause are manifold: a biased media, politicians who have lost touch with their constituents, systemic flaws in our constitutional structure. But a return to normalcy — and perhaps more importantly, civility—might be as simple as embracing one of the chief principles upon which the American political system was founded — federalism.

In crafting our constitutional arrangement, the Framers chose a political union that divides power between a central government and member sovereigns. Federalism, they believed, was the best way to ensure a harmonious union between separate states with distinct cultures and political preferences. Yet over the past century, our political system has become increasingly centralized, with the federal government prescribing one-size-fits-all policy in some of the most contested areas of public discourse, like healthcare, education, and entitlements. The consequences of this consolidation are palpable — our country is politically fractured, with diverse sectors of society straining under the weight of policy dictated by distant lawmakers unacquainted with the needs of their constituents. By returning power to the states — those same powers expressly reserved to them under the Tenth Amendment — we can hope for some semblance of harmony.

Federalism provides a way for different groups of people in different parts of the country to live together

Federal systems have at least two levels of government, the central level and a second level that includes territorial entities into which the country is divided, e.g. regions, states, provinces.

Stern v. Marshall announced one straightforward legal standard to inform future “public rights” analyses: the “historical antecedents” test. If a claim existed at common law in 1789, its resolution implicates the “judicial power,” and a non-Article III tribunal may not finally adjudicate it at the trial level.

Article III could neither serve its purpose in the system of checks and balances nor preserve the integrity of judicial decisionmaking if the other branches of the Federal Government could confer the Government’s “judicial Power” on entities outside Article III. That is why we have long recognized that, in general, Congress may not “withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty.” Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272, 18 How. 272, 284, 15 L.Ed. 372 (1856). When a suit is made of “the stuff of the traditional actions at common law tried by the courts at Westminster in 1789,” Northern Pipeline, 458 U.S., at 90, 102 S. Ct. 2858 (Rehnquist, J., concurring in judgment), and is brought within the bounds of federal jurisdiction, the responsibility for deciding that suit rests with Article III judges in Article III courts. The Constitution assigns that job – resolution of “the mundane as well as the glamorous, matters of common law and statute as well as constitutional law, issues of fact as well as issues of law” – to the Judiciary. Id., at 86-87, n.39, 102 S. Ct. 2858 (plurality opinion).

This Case Is an Ideal Vehicle for Clarifying Article III Jurisprudence, and for Fixing the Constitutional Damage to the Patent System

This case presents an ideal vehicle for clarifying the Court’s Article III Separation of Powers jurisprudence. It would also be the first time in 30 years (since Schor) for this Court to address directly the constitutional limits on the growth of the administrative state. In the process, the Court may restore needed certainty over the validity of valuable patent rights that companies at all levels of the economy need to compete on an even playing field.

The rate of patent invalidation in the United States appears to be increasingly high. 34Link to the text of the note Nearly forty-six percent of all patents litigated to judgment are held to be invalid. 35Link to the text of the note Due to this, scholars have identified multiple reasons that lead to the invalidation of patents. At first glance, guilt falls on the inefficiency of the system for granting patents. 36Link to the text of the note The Patent Office is routinely criticized as being a "rubber stamp" for patents and frequently issuing the majority of applications. 37Link to the text of the note Another factor, more pertinent to assignee estoppel, involves the vast changes in substantive patent law on which a patent can be invalidated. 38Link to the text of the note Academics have noted that "courts at different times could reach opposite decisions on the validity of the same patent based on the relevant patent laws of that particular period of time." 39Link to the text of the note Yet allowing such validity challenges serves the public's interest in the free flow of ideas. 40Link to the text of the note It also provides an outlet that relieves the public from the ever-evolving patent laws of the United States that, at any point in time, could place the public at the mercy of paying for an invalid patent. 41Link to the text of the note

An alternative view suggests that the public policy encouraging patent validity challenges has run its course. 42Link to the text of the note Economic uncertainty in the patent system can stem from an open season of validity challenges, thereby deterring potential investors or patentees from entering into long-term research and development commitments. 43Link to the text of the note A slippery slope could, in effect, result in decreased investments in technology and cause a spiraling economic decline. 44Link to the text of the note While the possession of unreliable and invalid patents has resulted in a loss of confidence in the past, [*201] remarks from the patent community note that this barely inhibits competition in the United States. 45Link to the text of the note And yet, parties continue to pose validity challenges. More recently, the Supreme Court, in Oil States Energy Services, L.L.C. v. Greene's Energy Group, has buttressed this policy concern by upholding alternative administrative forums for patent validity challenges. 46Link to the text of the note With more options available, patent validity challenges remain extant in the realm of patent law, even for an assignee.

The United States risks losing the technology competition with China if it doesn’t take significant steps to shore up its defense industrial base and integrate advanced capabilities into its military systems, according to a new report from commercial data company Govini.

In its 10th annual “National Security Scorecard” released July 17, Govini evaluated 12 technologies critical to national security using its Ark.ai commercial data platform, which the report described as “the first digital twin of the U.S. industrial base.”

What is frivolous litigation? According to Cornell Law School, a frivolous lawsuit is one that lacks any arguable basis either in law or in fact and may be intended to harass, delay, or embarrass the opposition. This definition seems pretty black and white, but attorneys often disagree on what is an arguable basis in law or fact. So, there is some subjectivity as to whether a case is frivolous or not. One top attorney did a survey of litigators years ago to see if there was any agreement on what frivolous litigation was. He reported that the only agreement from the survey was that “it is what the opposing attorney is doing to my client.”

Those focused on reducing patent rights claimed that excessive frivolous patent litigation harmed “good” companies. They used the “patent troll” narrative in an effort to sell our lawmakers and the public. This effort was amazingly effective, and we ended up with the passage of The America Invents Act of 2011 and resistance thereafter to restoring effective patent rights.

In one extreme instance, the same patent for "Hybrid Vehicles" (U.S. Patent No. 7,237,634) was challenged twenty-seven times since 2014 (thirteen times by Ford Motor, eight times by Volkswagen, five times by Hyundai, and one time by BMW). 92 Granted, the patent owner of the '634 patent is no longer a practicing entity and has sued multiple automakers. The patent's underlying technology could still be legitimate because it has been licensed by various automakers like Toyota and Kia.93 Without procedural changes, IPR barrages like this not only burden the administrative agency, but also deprive patent owners of their peace of mind after obtaining patents. That said, there exist some procedural reasons for such repetitive challenges, such as: (1) extreme cases driven by a large number of claims; and (2) some of these petitions being requests of joinders to other petition-thus they are merely copies of the other petitions. 94 In an ideal scenario, the procedurally triggered repetitions should be addressed by more stringent joinder rules.

In addition to the practice of multiple petitioners challenging a single patent, well-funded large corporations, especially tech companies, also discovered the ability of leveraging IPRs to overwhelm and destroy the portfolios of smaller competitors who are in no way malicious patent assertion entities. In the name of defending their own patents, it appears that large companies have been sinisterly neutralizing competitors' intellectual property. For example, in one case study, Apple once filed twelve IPR petitions against a North Carolina-based startup, Valencell, after a failed attempt to collaborate with the startup on an Apple Watch technology. 95 Although Valencell is only one case in point, Apple's treatment of its competitors reflects an industry wide mindset: tech companies with well resourced legal departments are willing to counterattack innovators so aggressively as to threaten the smaller innovative entities' livelihood, forcing them to settle or give up their enforcement rights altogether in district courts.

Similar to the previous findings, there were unintended consequences of the open standing requirement for bringing an IPR petition. Because of the open standing requirement that any third party can petition to invalidate any claim of a patent, there are many ways a patent can get challenged. As illustrated in Figure 2 below, a single petitioner can file separate IPR petitions against different claims within a single patent, multiple petitioners can file separate petitions against a single claim of a patent, and a single petitioner can keep filing multiple petitions against a single patent claim. As a result, the USPTO has been criticized for giving challengers too many "bite[s] at the apple" when any third party could inundate patent owners with multiple IPR proceedings. 8 1

[Table Omitted]

The America Invents Act of 2011 (AIA), the worst disaster to ever befall U.S. innovation, created the Patent Trial and Appeal Board (PTAB) inside the U.S. Patent and Trademark Office (USPTO). The USPTO grants a patent, and the PTAB invalidates the same patent at the request of the huge corporations that stole the invention. It does this in a proceeding significantly biased toward the infringer without a jury and without due process.

Former USPTO Director Michelle Lee, who was previously the Vice President of Patent Strategy at Google, weaponized the PTAB to invalidate 84% of the patents it fully adjudicates. No subsequent USPTO Director has corrected the PTAB’s innovation-destroying kill rate.

Josh Malone 2021 (Josh Malone is an inventor and a fellow at U.S. Inventor. He is a registered patent agent with the USPTO, January 29 2021, PTAB Trials Disproportionately Harm Small Businesses, https://www.law360.com/articles/1348182/ptab-trials-disproportionately-harm-small-businesses)//rohan

I am a firm believer in the provision of the U.S. Constitution that our patent system is to “promote progress in the useful arts” by “securing to inventors the exclusive right to their discoveries”. Unpredictability in Patent Trial and Appeal Board (PTAB) proceedings is paralyzing inventors who cannot obtain investment to develop and manufacture inventions or obtain licenses to commercialize them. At the PTAB, burdens of proof are reduced while subjective determinations are calibrated to err on the side of invalidation. Specifically the “reasonable likelihood” standard for institution is vague and readily achieved by an expert declaration that combining several pieces of prior art “would have been obvious” under the Supreme Court’s KSR precedent. Once a trial is instituted, challengers need prove invalidity by only a preponderance of evidence. PTAB judges have interpreted these provisions of the AIA as removing the presumption of validity and have oriented their decision-making toward invalidation whereby patent owners lack any viable defense against an obviousness argument, rendering invalid 84% patents subject to a final written decision.

The United States Supreme Court has ruled that the director of the United States Patent and Trademark Office, by and through his designees the Patent Trial and Appeal Board, has the unchallengeable authority to institute inter partes review proceedings even when they are brought outside the statute of limitations.

It is difficult to believe the above characterization of the Supreme Court’s April 20 decision could be accurate, but it is—and it is no longer open for debate or discussion.

Recently, we submitted comments for the record to the Senate Judiciary Committee’s IP Subcommittee in response to its June 22 hearing on the Patent Trial and Appeal Board (PTAB), titled: “The Patent Trial and Appeal Board: Examining Proposals to Address Predictability, Certainty and Fairness.” The hearing focused on Senator Leahy’s PTAB Reform Act, which among other changes, would eliminate the discretion of the Director to deny institution of an inter partes review (IPR) petition based on an earlier filed district court litigation involving the same patents, parties and issues. Here is the net of what we told them:

1) The PTAB is Predictably and Certainly Unfair to Patent Holders

In December 2023, the Senate IP Subcommittee held a hearing on the Promoting and Respecting Economically Vital American Innovation Leadership Act, S.2220 (PREVAIL), which affects the Patent Trial and Appeal Board (PTAB).

The PTAB is an appalling failure, invalidating 84% of the patents it fully adjudicates, thereby unleashing massive predatory infringement of small entity patents by huge corporations. The PTAB is a primary reason that Big Tech was able to monopolize, and China now leads the U.S. in 37 of 44 technologies critical to our economic growth and national security.

It used to be that a biometric sensor wouldn’t work on a moving body. A heart sensor would only work on a motionless person, like a patient in a coma. The solution that solved this problem was invented and patented by Dr. Steven LeBeouf.

Dr. LeBeouf, who has a Ph.D. in Electrical Engineering (no small feat), used this and other inventions to build a successful company—Valencell, Inc. Valencell produces wearable biometric sensing products and licenses its technologies. Years after the technology was patented, Apple came out with its Apple Watch. Apple approached Valencell regarding the technology, and a licensing agreement seemed imminent. If you’re familiar with how Apple operates in our current broken US Patent System environment, you can predict some of what happened next.