The debate is fundamental to understanding “rights” in the resolution.

Given the legal, administrative, and constitutional implications in classifying a patent as a public right, the distinction between public rights and private rights is not a hoary formalism that is merely haunting twenty-first-century court cases. In fact, the dichotomy between public rights and private rights will continue to be a highly contested issue in the coming years as more cases arrive at the Supreme Court from the PTAB. Oil States guarantees this by limiting its holding only to the legal determination of a vested patent's validity under the separation of powers and Seventh Amendment doctrines.131 In fact, Oil States concludes by expressly refraining from deciding any Due Process or Takings Clause challenges against the PTAB,132 which is the legal equivalent of an open invitation for future lawsuits raising these issues.

An active debate about the legal status of patents has existed since the first Patent Act of 1790. Since Congress enacts the patent statutes as one of its many delegated powers, the public right versus private right distinction -framed usually in terms of a privilege or property right-has been a hotly contested issue in the policy debates about the nature of patents from the early American Republic.133 This policy and legal debate is an undeniable fact of the historical record, and it continues to this day.134 Yet, it is equally undeniable that the dominant approach by Congress and by courts, at least until recently, has been a private law model for the U.S. patent system, securing patents as private property rights.135

This further confirms the historical and doctrinal evidence reviewed in this Essay that the originating source of a legal right-whether in a statute or in a court decision-has never been the sole test in classifying it as a public right or private right. Both categories of legal rights have shared origins in statutes and judicial decisions alike-both institutions create and sustain the myriad of doctrines in public law and private law. The reduction of the public right and private right categories to a mere distinction between statutes and judicial decisions is deeply mistaken, both historically and legally.136 As the institutional and doctrinal interplay between patent law and modern administrative law continues to grow-both in size and importance -distinguishing between legal rights on false historical narratives merely creates more indeterminacy and chaos in a fundamental doctrinal distinction that is already accused by the same commentators and courts of being indeterminate and chaotic.