Private Patent Rights, the Patent Bargain and the Fiction of Administrative 'Error Correction' in Inter Partes Reviews

Abstract

This paper shows that the Framers empowering Congress to act by “securing for limited Times to…Inventors the exclusive Right to their…Discoveries” understood that the exclusive patent right is not “granted” but is a preexistent right emanating from the inventor – not from Congress. This exclusive right is only secured by statute, as part of the patent bargain in exchange for the inventor’s public disclosure of the invention. Therefore the right adjudicated in administrative validity review of issued patents is a “private right.” It is shown that the notion of post-issuance administrative “error correction” is fiction, as it overlooks the irreversible and uncorrectable exchange of rights upon patent issuance. It is concluded that only Article III courts can extinguish such private rights and that arguments advanced by proponents of post-issuance administrative patent revocation are therefore deficient in supporting the constitutionality of such proceedings.

Keywords: patent bargain, private right, inter partes review, constitutionality