Unfortunately, we far too often still have to rely on what Justice Anthony Kennedy has for breakfast on any particular decision morning.
But on a case-by-case basis – things can appear very law-and-order in our nation’s highest slate in the Judicial Branch.
One of these seemingly optimistic moments – involves something about which we wrote about a month ago:
PTAB: DCs Latest Unaccountable, Power Grabbing Government Board: “Government is always looking to expand its ability to lord over the private sector. Congress has done far more than its part – passing all sorts of laws that have very little to do with the Constitution and its extraordinarily limited role for the federal government.….
“(T)he next evolutionary step in growing government – was government creating ‘independent’ bureaucracies. One step further removed from the Constitution and accountability. Populated by autonomous, unelected bureaucrats – who answer to our elected officials…almost not at all.
“(T)here’s the spawn of the America Invents Act – the Patent Trial and Appeal Board (PTAB). As Washington is want to do, they name a bill after inventing – and an extrusion therefrom is killing inventing….
“‘Bassam Abraham and Roman Chistyakov, two Boston-based engineers, in 2002 created a new technology for depositing metals at the micro scale. It had wide-ranging applications, from microchips to shaving razors. The two men, joining a longstanding American tradition stretching back to the signing of the Constitution, filed patents for their invention.
“‘Then their technology drew the attention of several massive, Fortune 500 companies, whom Abraham and Chistyakov would end up taking to court for allegations of patent infringement.
“‘In response, those same Fortune 500 companies brought Abraham and Chistyakov’s patents in front of an entity called the Patent Trial and Appeal Board (PTAB) – an “administrative law court” where a panel reviews challenges against patents previously issued by the Patent and Trademark Office (PTO)….
“‘The PTAB panel returned its results: of 371 claims challenged, it invalidated all 371. Abraham’s patents, along with the 25-person company he and Chistyakov had grown based on them, were toast.’
“Oh look – Big Government and Big Business working tentacle-in-tentacle (they have tentacles, not hands and arms) to destroy the Little Guy. Over, and over and over again.”
Well, it seems we’re not the only ones who find the unaccountable-Fourth-Branch-of-Government PTAB to be unconstitutional. And our Breakfast-of-Champions Supreme Court – is being asked to take a look at it:
“Are Patent Office trials on their way out? Quite possibly, after a Supreme Court oral argument last week where a number of justices expressed their skepticism about the constitutionality of such proceedings….
“Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, the most highly anticipated patent case in this year’s Supreme Court term, Oil States contended that Patent Office proceedings are unconstitutional because they involve the revocation of patent rights (i.e., private property rights) without a jury trial conducted by an Article III judge (i.e., a federal jurist confirmed by the Senate). The adjudicators of Patent Office trials are administrative law judges (ALJs) who do not require Senate confirmation….
“(Oil States’ counsel Allyson) Ho explained that a critical problem with Patent Office trials arises because ‘Congress is taking a category of cases that have been adjudicated in courts for centuries and . . . withdraws those cases to a non-Article III tribunal.’”
Get all that? Oil States last week – argued nigh exactly what we we argued four weeks ago.
That Congress created a situation where you can lose your private property – based on the rulings of people who aren’t judges who received Senate confirmation. You don’t even get a jury. Your fate instead rests with unaccountable ALJs.
None of this is constitutionally kosher.
Things in the Court room appeared to trend toward our founding document – and property protection:
“Gene Quinn of IP Watchdog asserted after the argument that ‘a 9-0 decision that ratifies the constitutionality of IPR proceedings seems quite unlikely.’ And a panel he interrogated also sounded divided. We’ll likely have to wait until June for the ruling, but Patent Office trials now seem more endangered than before.”
Here’s hoping things go well for the Constitution and private property.
I’d like to humbly ask Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Neil Gorsuch – to please take turns bringing Justice Kennedy doughnuts each morning.
Just in case.
Just kidding, constitutional scholars.
Unlike much of DC – I’m not into bribery.
This first appeared in Red State.