Americans, Property Rights and the Supreme Court

Kelo v. City of New London stands as the apogee of Supreme Court cases regarding property rights, especially for conservatives. A narrow 5-4 decision recklessly expanded the scope of eminent domain, allowing private developers and the government to collude and forcibly take private property away from citizens for “public use” under the Takings Clause of the Fifth Amendment. Now the Court is faced with another landmark case on property rights that will once again be a defining moment for conservatives.

Oil States Energy Services, LLC v. Greene’s Energy Group, LLC (Oil States for short) asks the court to decide the scope and power of the Patent and Trademark Appeals Board (PTAB), and whether this unaccountable government agency can extra-constitutionally extinguish “… private property rights through a non-Article III forum without a jury.”  The PTAB (which is part of the Patent and Trademark Office) was created to provide another venue for challenging the validity of patents.   This extra-judicial system has allowed ideology driven decisions to invalidate pre-existing patents, as in the case of Oil States, in clear violation of the patent holder’s property rights.

Last month, dozens of conservative leaders issued a “Memo for the Movement” which called for an innovation and economic competitiveness agenda that included the need for stronger patent protections, including the need to reign in the out-of-control Patent Trail and Appeal Board “… an administrative tribunal created after previous congressional reform and has been labeled a “patent death squad” with the sole purpose of invalidating patents.”

Since its inception, the PTAB has become a rogue agency that has tramped on the rights of patent holders, invalidating a very high percentage of patents.  Officials have even embraced the moniker of it being a “death squad for patents.”  Virtually anyone can challenge a patent, multiple times and patent holders have fewer rights to protect them.  

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