The U.S. Supreme Court recently agreed to decide whether a popular administrative process for determining patent validity is unconstitutional. In-house intellectual property attorneys say this will surely be a closely watched case, as the decision could have a significant impact on the patent system.

The high court agreed on June 12 to hear Oil States Energy Services v. Greene's Energy Group and to determine if “inter partes review, an adversarial process used by the [U.S.] Patent and Trademark Office (PTO) to analyze the validity of existing patents, violates the [U.S.] Constitution” by eliminating a private property right without the option of a jury trial.

“Suits to invalidate patents must be tried before a jury in an Article III forum, not in an agency proceeding,” said Texas-based Oil States Energy Services in a November 2016 petition to the Supreme Court, adding that an 1898 Supreme Court decision established that a patent cannot be revoked or canceled by a government officer because it's the property of the patentee and thus deserves the same legal protections as all property. Pointing to a more recent holding, Oil States added: “This Court has long held that patent 'infringement cases today must be tried to a jury[.]'”