Page 12 Does an Article I Tribunal Have the Au- thority to Adjudicate and Extinguish Pa- tent Rights as Patent Rights Are Public Rights? The Supreme Court’s most well-developed line of cases concerning the adjudicative powers of Article I tribunals arises in the bankruptcy con- text, based upon bankruptcy being a “public right” that exists only as a direct result of fed- eral government action, as opposed to a “private right” that naturally arises between individuals.3 Specifically, in 1982, a plurality of the Supreme Court held that there were three exceptions to the general rule requiring Article III adjudica- tion before a jury.4 These are: territo- rial courts, military tribunals and cas- es involving “public” as opposed to “private” rights.5 In 1989, the Court further expanded the scope of cases Article I tribunals may adjudicate, ruling that the “class of ‘public rights’ whose adjudication Congress may assign to administrative agen- cies or courts of equity sitting without juries is more expansive [than previous case law sug- gests].”6 The Court held that, “public right[s]” may extend to cases not involving the Federal Government, if Congress created a seemingly “private right . . . so closely integrated into a public regulatory scheme as to be a matter ap- propriate for agency resolution with limited in- volvement by the Article III judiciary.”7 Patent rights fall squarely within this defini- tion of a public right. The USPTO issues pa- tents if “it appears that the applicant is entitled to a patent under [federal] law.”8 Patents thus exist as a creation of a government regulatory (Continued from page 1) agency tasked with determining and awarding ownership of intangible property, and patents only exist as a direct result of federal govern- ment action. The process of inter partes review, conducted before the PTAB, is an adjudicatory procedure that reviews the validity of already- issued patents. This process was also created by a federal regulatory scheme, the Leahy- Smith America Invents Act (AIA), Pub. L. No. 112–29, 125 Stat. 284 (2011). Thus, the PTAB, as an Article I tribunal, just like Article I bank- ruptcy tribunals, has the power to adjudicate patent rights, as they are public rights. Congress relies upon the USPTO’s expertise not only in the issuance of patents, but also “to correct the agency's own errors in issuing pa- tents in the first place.”9 To restrict the agency that issues patents from reviewing and possibly extinguishing a patent it previously issued in error would be a result that defeats Congress’s purpose. In its petition, OSEC cites McCormick Harvesting Machine Co. v. C. Aultman & Co., 169 U.S. 606 (1898), which holds that the patent office depriving a patent holder of its patent would be an “invasion of the judicial branch of the government,” because patents “become the [private] property of the patentee.”10 However, this is inapplicable to OSEC’s case, because subsequent case law articulates and clarifies the features of public rights in the context of bankruptcy (which, like a patent, is a public right), and because McCormick’s precedent is superseded by Congress’s enactment of numer- ous mechanisms for the USPTO to administra- tively review the validity of issued patents, in- cluding the inter partes review process enacted as part of the AIA. Because a patent is a creation of federal law that is “closely integrated into a public regula- tory scheme,” patent rights may be adjudicated, (Continued on page 13) Inter Partes Review FBA/OC “Patent rights fall squarely within this definition of a public right.”