As the U.S. Supreme Court gears up to hear its next patent case, it's cracking open the door on an issue that could potentially allow executive branch agencies to fight each other over intellectual property.

The case in question, Return Mail v. U.S. Postal Service, will decide whether the government is a “person” who may petition for covered business method review under the America Invents Act.

This issue is so narrow—the government is only an occasional AIA petitioner—that it seems like a blank slate for interested groups to pitch their pet Patent Trial and Appeal Board gripes. For example, the Cato Institute seems to be relitigating the Article III concerns it raised in Oil States, including the PTO director's authority to “stack” panels with extra PTAB judges.

But the Cato brief, whose authors include Jones Day partner Greg Castanias and the institute's Ilya Shapiro, makes some interesting points. The attorneys point out that the PTO has the right to intervene in appeals of PTAB judgments, which means you could get “the constitutional oddity of a case pitting two agencies in the Executive Branch against one another.”

That's not their own language, by the way. They're quoting a D.C. Circuit judge's concurring opinion from a 2009 case—some guy by the name of Brett Kavanaugh.

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The lawyers concede that Congress can permit such an oddity in narrow circumstances. But to do so, it must speak in “clear and explicit language,” not through silence.

That argument resonates with Ropes & Gray partner Matt Rizzolo. The executive branch can take both sides of the v. “if Congress has spoken directly to it,” he says. “They haven't spoken clearly in this case.”

To be fair to the government, it hasn't had an opportunity yet to file a merits brief on the “person” issue. That's because neither party argued it to the Federal Circuit—it was raised for the first time in Judge Pauline Newman's dissent.

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