In November, the U.S. Supreme Court will consider the constitutionality of inter partes review, a popular administrative process for determining patent validity. With the argument date nearing, counsel from Facebook Inc., General Electric Co. and Intel Corp. are making their cases for IPR.

The Supreme Court is slated to hear arguments on Nov. 27 in the case, Oil States Energy Services v. Greene's Energy Group, which questions whether IPR violates the Constitution by eliminating a private property right without the option of a jury trial. In August, a number of voices—from professors, to companies and in-house counsel—weighed in to support Oil States Energy Services' position that suits to invalidate patents need to be tried before a jury in an Article III forum.

The “constitutionally flawed” IPR process “seriously prejudices” certain companies that depend on property rights in patents, argued Houston-based LiquidPower Specialty Products Inc. in an Aug. 31 amicus brief in support of the petitioner.

Briefs backing Greene's Energy group, of course, offer an entirely different perspective.

“Congress's decision to authorize the [Patent Trial and Appeal Board] to cancel patent claims through inter partes review is not only consistent with Article III and the Seventh Amendment, but also advances the patent clause's objective of 'promot[ing] the progress of science and useful arts,'” argued Facebook, Dell Inc., Twitter Inc. and 11 other companies in an Oct. 30 brief.

Facebook and Dell have participated in 76 and 86 inter partes reviews and similar post-grant proceedings, respectively, according to the brief, which was signed jointly by Facebook vice president and general counsel Colin Stretch and Krish Gupta, senior vice president of intellectual property and litigation at Dell. Because of the reliance on this “cost-effective, fair, and efficient mechanism for weeding out unpatentable claims,” the brief noted, “technology companies have been able to focus on innovation, not litigation.”

Those arguing against the IPR process have traced the right to a jury trial before a patent is revoked back hundreds of years, noting that in the late 1700s, inventors, before a patent could be revoked, had the right to a trial by jury in an English court. Stretch and Gupta argue in the brief, however, that “multiple features of the historical record,” such as the fact that the English Privy Council had that ability to revoke patents centuries ago without a judge or jury, make it clear that patent cancellation is not confined to judicial proceedings.

In another brief filed on Oct. 30, Intel, Google, Xerox Corp., Samsung Electronics Co. and four other companies similarly looked to historical practice to point out that, as far back as the 19th century, Congress has given the U.S. Patent and Trademark Office the authority to use adjudicatory proceedings to cancel patents. “Invalidating inter partes review would therefore work a sea change in patent law, depriving the PTO of post-grant review authority that it has long exercised,” according to the brief, which was signed by Intel senior litigation attorney Matthew Hult, among others.

What's more, IPR “does not aggrandize the executive branch at the expense of the judiciary” the amicus brief noted. “The PTO may not invalidate a patent based on any post-grant conduct or other issues that it could not have considered in the initial examination proceeding,” the amici argued. “Inter partes review is therefore no different from any other administrative reconsideration proceeding that enables an agency to correct its own errors and reduces the need for judicial intervention.”

This opportunity for the Patent Office to correct its own errors by way of IPR is a focus in an Oct. 30 brief signed by GE vice president and chief intellectual property counsel Buckmaster de Wolf, who jointly signed with two other GE counsel. “The earliest federal patent laws granted executive-branch officers broad authority to grant patents, and to re-examine and correct issued patents, and to do so using a variety of adjudicatory procedures,” the GE brief argued. “Inter partes review is consistent with this long history of permitting the patent agency to review and correct its own mistakes.”

Not surprisingly, Apple Inc. has also added its voice to the mix in support of the IPR process. With 267 IPR petitions filed since 2012, the Cupertino, California-based company is the top IPR petitioner, according to the amicus brief, also filed Oct. 30.

Like GE, a significant benefit of IPR for Apple is the authority given to the PTO to review its own decisions and for “remedying certain errors in the issuance of patents.” Inter partes review also allows the PTO “to implement quickly and efficiently important clarifications in the law” and offers the benefit of more predictability when it comes to cost and duration of proceedings, Apple argued.

“As a company that holds a substantial patent portfolio and often faces infringement suits, a sampling of Apple's experience with IPRs illustrates IPR's salutary effects for the patent system,” the brief said.

In November, the U.S. Supreme Court will consider the constitutionality of inter partes review, a popular administrative process for determining patent validity. With the argument date nearing, counsel from Facebook Inc., General Electric Co. and Intel Corp. are making their cases for IPR.

The Supreme Court is slated to hear arguments on Nov. 27 in the case, Oil States Energy Services v. Greene's Energy Group, which questions whether IPR violates the Constitution by eliminating a private property right without the option of a jury trial. In August, a number of voices—from professors, to companies and in-house counsel—weighed in to support Oil States Energy Services' position that suits to invalidate patents need to be tried before a jury in an Article III forum.

The “constitutionally flawed” IPR process “seriously prejudices” certain companies that depend on property rights in patents, argued Houston-based LiquidPower Specialty Products Inc. in an Aug. 31 amicus brief in support of the petitioner.

Briefs backing Greene's Energy group, of course, offer an entirely different perspective.

“Congress's decision to authorize the [Patent Trial and Appeal Board] to cancel patent claims through inter partes review is not only consistent with Article III and the Seventh Amendment, but also advances the patent clause's objective of 'promot[ing] the progress of science and useful arts,'” argued Facebook, Dell Inc., Twitter Inc. and 11 other companies in an Oct. 30 brief.

Facebook and Dell have participated in 76 and 86 inter partes reviews and similar post-grant proceedings, respectively, according to the brief, which was signed jointly by Facebook vice president and general counsel Colin Stretch and Krish Gupta, senior vice president of intellectual property and litigation at Dell. Because of the reliance on this “cost-effective, fair, and efficient mechanism for weeding out unpatentable claims,” the brief noted, “technology companies have been able to focus on innovation, not litigation.”

Those arguing against the IPR process have traced the right to a jury trial before a patent is revoked back hundreds of years, noting that in the late 1700s, inventors, before a patent could be revoked, had the right to a trial by jury in an English court. Stretch and Gupta argue in the brief, however, that “multiple features of the historical record,” such as the fact that the English Privy Council had that ability to revoke patents centuries ago without a judge or jury, make it clear that patent cancellation is not confined to judicial proceedings.

In another brief filed on Oct. 30, Intel, Google, Xerox Corp., Samsung Electronics Co. and four other companies similarly looked to historical practice to point out that, as far back as the 19th century, Congress has given the U.S. Patent and Trademark Office the authority to use adjudicatory proceedings to cancel patents. “Invalidating inter partes review would therefore work a sea change in patent law, depriving the PTO of post-grant review authority that it has long exercised,” according to the brief, which was signed by Intel senior litigation attorney Matthew Hult, among others.

What's more, IPR “does not aggrandize the executive branch at the expense of the judiciary” the amicus brief noted. “The PTO may not invalidate a patent based on any post-grant conduct or other issues that it could not have considered in the initial examination proceeding,” the amici argued. “Inter partes review is therefore no different from any other administrative reconsideration proceeding that enables an agency to correct its own errors and reduces the need for judicial intervention.”

This opportunity for the Patent Office to correct its own errors by way of IPR is a focus in an Oct. 30 brief signed by GE vice president and chief intellectual property counsel Buckmaster de Wolf, who jointly signed with two other GE counsel. “The earliest federal patent laws granted executive-branch officers broad authority to grant patents, and to re-examine and correct issued patents, and to do so using a variety of adjudicatory procedures,” the GE brief argued. “Inter partes review is consistent with this long history of permitting the patent agency to review and correct its own mistakes.”

Not surprisingly, Apple Inc. has also added its voice to the mix in support of the IPR process. With 267 IPR petitions filed since 2012, the Cupertino, California-based company is the top IPR petitioner, according to the amicus brief, also filed Oct. 30.

Like GE, a significant benefit of IPR for Apple is the authority given to the PTO to review its own decisions and for “remedying certain errors in the issuance of patents.” Inter partes review also allows the PTO “to implement quickly and efficiently important clarifications in the law” and offers the benefit of more predictability when it comes to cost and duration of proceedings, Apple argued.

“As a company that holds a substantial patent portfolio and often faces infringement suits, a sampling of Apple's experience with IPRs illustrates IPR's salutary effects for the patent system,” the brief said.