KEI Files Brief of Amicus Curiae in Oil States v. Greene’s Energy Group

KEI has submitted an amicus brief in support of Respondents in the case of Oil States Energy Services, LLC, v. Greene’s Energy Group, LLC, currently before the Supreme Court. The brief is attached here.

The case centers around the question of whether the inter partes review (IPR) process is unconstitutional by extinguishing private property rights through a non-Article III forum without a jury.

These are some of the points the KEI brief makes in response to certain arguments made by Petitioner (Oil States Energy Services, LLC) and others who have filed briefs claiming the IPR system is harmful to innovation and wealth creation:

  1. There are existing administrative mechanisms to modify patent claims and rights, including the legislative framework and administrative process to issuing certificates of corrections and extending patent terms. These mechanisms are often used to protect patent owners and expand their rights, sometimes with the support of the same parties seeking to end the IPR process.
  2. Claims that the IPR process has had a negative impact on wealth creation are flawed, because they only look at the benefits to holders of patents with weak or bad claims and not the costs of enforcing the bad patents on the public. One person’s loss of income due to an IPR proceeding eliminating a flawed patent claim is typically another’s savings, and also an enhanced freedom to operate for other suppliers of innovation.
  3. There are already a number of overlapping and layered patent claims for new CAR T cancer therapies. This is an area where the excessive number of patents and the complex patent landscape is more of a barrier to innovation than is the lack of patents.
  4. Patents are not the only way to induce innovation and should not be treated as such.
  5. The World Intellectual Property Organization’s Global Innovation Index describes eighty variables to measure innovation performance and capacity, with only four relating to the number of patents granted.
  6. There are numerous non-patent mechanisms to induce investments in innovation in the United States, and it is not necessary to enable the enforcement of bad patents in order to protect investments. Areas where investments are protected even without the grant of a patent include such mechanisms as pharmaceutical and agricultural regulatory market exclusivity and test data protection, and the Orphan Drug exclusivity.
  7. There is growing interest in proposals to delink R&D costs from the prices of medical technologies, as problems of access and affordability have worsened. Innovation in how we fund and reward innovation is feasible and important.