SCOTUS Appears Divided on Oil States: will addition of Neil Gorsuch be a swing vote?
by: Tom Hochstatter November 27, 2017
In the most widely anticipated (Supreme) court case for the intellectual property industry in quite some time (some arguing ever) the Oil States Energy Services LLC vs. Greene’s Energy Group case has been heard today by the Supreme Court. Anxiety assuaged and popcorn consumed.
It appears that the court is divided from the initial reactions of Andrew Chung of Reuters – in hearing today’s one hour proceedings:
“While some of the court’s liberal justices voiced support for the process, conservative justices raised concerns that the government might be able to revoke patents too easily.” – Chung of Reuters
UPDATE: Here is the full dialog of the proceedings today.
I’m loathe to recount the background for those asleep or under the proverbial “IP rock”; however, SCOTUS justices, in June, agreed to consider whether the AIA review violates the U.S. Constitution, and if it does then it must be abolished. We’ve seen potential record amicus briefs (for a patent case) filed on both sides of the issue. There is vehement divide much like the rest of the Washington DC machine on every other issue of note: immigration, taxes, healthcare plans, Trump and Russia…
However, by all accounts the AIA has caused significant unintended consequences for all parties involved in the patent system. The worst of which is the slide of the US patent system from first, by a wide margin, to 10th according to the latest WIPO survey – centered primarily around the volatility of patents’ rights. If there is anything we know about vibrant, growing markets – it’s that its participants desire some level of assurance of likely outcomes. That assurance is all but gone, replaced by even more volatility than ever. AIA might as well be called the “monkey wrench” Act…
We likely won’t see a final ruling on this case until mid 2018 so until then let the speculations continue and UK betting parlors make some hay in the meantime.
For the rest of us, our day to day likely won’t change much but it’d be a fools errand if we didn’t have two sets of contravening plans for operating our respective IP companies once the final edict is pronounced.