Allergan's Battle to Stay in Court: Does Inter Partes Review Violate the Constitution by Circumventing Courtroom Adjudication?

Abstract

Since its institution in 2011, inter partes review has caused considerable disruption in the intellectual property world, with some industry players questioning the process' constitutionality. One of these players is Dublin-based pharmaceutical company Allergan, Inc., which asserts that it is unfair to force patent owners to defend their USPTO-granted patent rights before the Patent Trial and Appeal Board ("PTAB"), a non-Article III sanctioned forum. Central to this debate is the question of whether patents confer private or public rights. This article discusses both sides of the dialogue over inter partes review constitutionality, and postulates that the process is likely unconstitutional. The Supreme Court is set to rule on whether inter partes review is constitutional this year.