If you understand this post's headline, congratulations: you are the nerdiest of law nerds, checking no less than two boxes in the obscure law category, takings and patent law.
But if you have been paying attention here, you know that recently, the Supreme Court, in Oil States Energy Services, LLC v. Greene's Energy Group, LLC, No. 16-713 (Apr. 24, 2018) (which we wrote about in "Property Lawyers, Read The Supreme Court's Latest Patent Case"), held that "inter partes" review of previously-issued patents (a form of property), does not run afoul of the Constitution.
Yes, these patents could be reconsidered in inter partes review. But the Court expressly left open the question of whether revoking a previously-recognized patent would be a taking:
Finally, our decision should not be misconstrued as suggesting that patents are not property for purposes of the Due Process Clause or the Takings Clause. See, e.g., Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 642 (1999); James v. Campbell, 104 U. S. 356, 358 (1882).Slip op. at 17.
Well, earlier this week, the first shoe dropped when patent owners filed a class action complaint in the Court of Federal Claims claiming (among other things) a taking of their property. The complaint was covered by the patent law blogs (see, e.g., "Just Compensation for Cancelling My Patent").
Want to sign up as a plaintiff? Go to counsel's page here and find out more. That page describes the issues this way:
This unlawful “taking” occurred, according to the lawsuit, when the Patent Trial and Appeal Board (“PTAB”) invalidated claims pursuant to the post-grant proceedings created in the America Invents Act (“AIA”), including Inter Partes Review (“IPR”) and Post-Grant Review (“PGR”) proceedings (together, “post-grant proceedings” or “PGPs”). These PGPs have been used by the USPTO to invalidate patents at an alarming rate, and Christy, Inc. and other patent holders seek just compensation for the taking of patent owners’ recognized patent property rights by the United States. More specifically, the lawsuit seeks money damages for the value of the patent claims, including any expected royalty and other payments for use of the patented technologies, the issuance and maintenance fees paid, and any investments made in the patented technologies.
The case also seeks damages for the United States’ breach of contract for its failure to maintain in force the subject patent claims, including the recovery of attorney fees expended defending those same patents in PGPs. And because the United States contends these patents were issued “erroneously” by the USPTO in the first place, Christy, Inc. contends all issue and maintenance fees paid were exacted by the government and should be returned.
We shall follow along, of course.