"Constitutional conservatives are watching closely to see whether the Court will protect our patent rights, or instead allow for the continued degradation of these rights. In Oil States, the Justices will be asked to decide whether a rogue, out-of-control bureaucratic agency known as the Patent Trial and Appeal Board (PTAB) is constitutional. Congress created the PTAB in 2011 as part of a “patent reform” law that attempted to make patent challenges more efficient. Instead, the law has created another administrative process for challenging patent rights, further undermining the judicial branch’s role in patent review.
While perhaps a worthy goal, the PTAB has become a regulatory agency run amok. The former head of the Federal Circuit even labeled it a “patent death squad.” And the data support this label. The PTAB’s patent invalidation rate ranges from 62% to 92%. In some high- tech sectors, well over 90% of patents are invalidated. This is partly because the U.S. Patent and Trademark Office (PTO) frequently uses the PTAB to carry out its own agenda. For instance, during the Obama administration, the director of the PTO often stacked the deck by convening multiple panels of PTAB judges until a panel would achieve her desired result and invalidate a patent that she believed was not valid..."