Spring/Summer 2017 Page 13 and if granted in error, extinguished by an Article I tribunal.11 Is the PTAB’s Authority to Adjudicate Buttressed by the Patent Owner’s Con- sent by Filing for a Patent Right? In the context of bankruptcy cases, “Article III is not violated when [parties] knowingly and voluntarily consent to adjudication by a bankruptcy judge.”12 Such consent may be “express or implied.”13 This provides further justification for rejecting OSEC’s position that the PTAB, an Article I tribunal, lacks authority to extinguish its patent rights. The Supreme Court has previously held that by filing a proof of claim against a bankruptcy estate in a bankruptcy court, the filer “[brings itself] within” and consents to the adjudica- tion by the bankruptcy judge, and is no longer entitled to a jury trial.14 When such a filer puts forth its proof of claim, it runs the risk of the claim being denied. Likewise, when a pa- tent application is filed, the filer chooses to avail itself of the benefits of the patent sys- tem, and thus consents to the jurisdiction of the USPTO, a federal agency, to determine the patentability of the subject matter of its application. Further, the filer for a patent application has alternatives to availing itself of the benefits of the patent system — it may, for example, choose to maintain its proprietary infor- mation as a trade secret instead of seeking patent protection. By electing the benefits of the patent system, a patent filer not only agrees to be bound by the decision of the USPTO to grant or deny the patent — but al- so to later have it revoked should it be found that the decision to grant the patent was in (Continued from page 12) error. What about Public Policy: Practicality, Effi- ciency, and Stability of Agency Determina- tions? In approving the constitutionality of the PTAB, as the Article I tribunal of the USPTO, to extin- guish the public rights granted by its agency, the Supreme Court would not only comport with ex- isting case law, but would also uphold important public policy objectives. The ability of Article I tribunals to adjudicate dis- putes, such as the PTAB adjudicating inter partes review proceedings, is crucial to judicial and eco- nomic efficiency. Article I tribunal adjudication on highly specialized matters such as bankruptcy or patent law substantially aids the nation’s heavily burdened Article III judiciary. Reducing the burden on Article III courts to adjudicate all cases of patent invalidation, as well as reducing the economic burden upon a litigant desiring to challenge a dubious patent, were core objectives of Congress in establishing the inter partes re- view proceeding. Further, a determination in OSEC’s favor would not only impact the patent system, but would al- so throw serious doubt into the ability of any agency, whether via an agency determination or via an Article I tribunal, to revoke a previously granted property right. Existing trademark rights are presently subject to cancellation via an adversarial proceeding before an Article I tribu- nal, the Trademark Trial and Appeal Board. The Court of Federal Claims, an Article I tribunal, has jurisdiction to adjudicate challenges raised to the propriety of contract rights awarded via a bidding process by other government agencies. The Social Security Administration’s Office of Disability Adjudication and Review is an Article I tribunal that has the power to revoke an individ- ual’s previously granted benefits. The power of all of these tribunals to perform these duties (Continued on page 14) Inter Partes Review