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(Zhu)\Dragon Petition.Wpd NO. In the Supreme Court of the United States DRAGON INTELLECTUAL PROPERTY, LLC, Petitioner, v. DISH NETWORK L.L.C. and SIRIUS XM RADIO INC., Respondents. On Petition for Writ of Certiorari to the United States Court of Appeals for the Federal Circuit PETITION FOR WRIT OF CERTIORARI KAI Z HU Counsel of Record DRAGON INTELLECTUAL PROPERTY, LLC c/o 60 Cody Ln. Los Altos, CA 94022 T. 650.999.0172 F. 610.884.6145 [email protected] Counsel for Petitioner Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001 i QUESTION PRESENTED Whether inter partes review—an adversarial process statutorily created in 2011 and used by the Patent and Trademark Office (PTO) to analyze the validity of existing patents—violates the Constitution by extinguishing private property rights through a non- Article III forum without a jury, especially for patents granted before inter partes review was created. This petition presents the same question which this Court is considering in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 639 F. App’x 639 (Fed. Cir. 2016), cert. granted, 2017 WL 2507340 (U.S. June 12, 2017) (“Oil States Energy Services”). Because this petition implicates the same issues to be decided in Oil States Energy Services, and because the Court will soon decide the power of the Patent Trial and Appeal Board of the USPTO to determine validity of patent rights, Petitioner asks that the Court hold its decision on this petition pending that decision. ii PARTIES TO THE PROCEEDINGS AND RULE 29.6 STATEMENT The parties to the proceedings include those listed on the cover. Dragon Intellectual Property, LLC, is a limited liability company formed in the State of Delaware. iii TABLE OF CONTENTS QUESTION PRESENTED.................... i PARTIES TO THE PROCEEDINGS AND RULE 29.6 STATEMENT ............. ii TABLE OF AUTHORITIES................... v PETITION FOR A WRIT OF CERTIORARI ...... 1 OPINIONS AND ORDERS BELOW ............ 1 STATEMENT OF JURISDICTION............. 1 CONSTITUTIONAL PROVISIONS INVOLVED . 1 INTRODUCTION........................... 2 STATEMENT OF THE CASE ................. 2 REASONS FOR GRANTING THE PETITION .... 5 I. This Court’s Precedent Confirms That The Seventh Amendment Provides Patent Owners With A Right To A Jury In Invalidation Proceedings................. 5 II. This Court’s Precedent Confirms That Patent Owners Have A Right To An Article III Forum For Invalidation Proceedings. ...... 9 III. Inter Partes Review Cannot Be Justified By The Public-Rights Doctrine, Especially For Patents Granted Earlier................ 10 CONCLUSION ............................ 14 iv APPENDIX Appendix A Opinion in the United States Court of Appeals for the Federal Circuit (November 1, 2017) ...........App. 1 Appendix B Final Written Decision in the United States Patent and Trademark Office, Before the Patent Trial and Appeal Board (June 15, 2016) ..............App. 11 v TABLE OF AUTHORITIES CASES Atlas Roofing Co. v. Occupational Safety & Health Review Comm’n, 430 U.S. 442 (1977) ...................... 12 Boulton Watt v. Bull, 1795) 126 Eng. Rep. 651 (CP) ............... 9 Crowell v. Benson, 285 U.S. 22 (1932) ....................... 12 Curtis v. Loether, 415 U.S. 189 (1974) ..................... 5, 6 Darcy v. Allein, (1601) 77 Eng. Rep. 1260 (KB) .............. 6 Ex Parte Wood & Brundage, 22 U.S. 603 (1824) ........................ 6 Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998) ....................... 7 Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989) ..................... 6, 11 Iron Silver Mining Co. v. Campbell, 135 U.S. 286 (1890) ...................... 10 Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed. Cir. 1995) ................ 6 Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996) ................... 5, 7, 8 vi McCormick Harvesting Mach. Co. v. C. Aultman & Co., 169 U.S. 606 (1898) .................... 2, 10 MCM Portfolio LLC v. Hewlett-Packard Co., 812 F.3d 1284 (Fed. Cir. 2015) ............ 4, 7 Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272 (1855) ..................... 9, 12 NFIB v. Sebelius, 132 S. Ct. 2566 (2012) .................... 13 N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982) ..................... 9, 13 Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 639 F. App’x 639 (Fed. Cir. 2016), cert. granted, 2017 WL 2507340 (U.S. June 12, 2017) ..... i, 4 Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) .................... 12 Stern v. Marshall, 564 U.S. 462 (2011) .................. passim Tegal Corp. v. Tokyo Electron Am., Inc., 257 F.3d 1331 (Fed. Cir. 2001) .............. 7 United States v. Am. Bell Tel. Co., 128 U.S. 315 (1888) .................... 8, 13 CONSTITUTION U.S. CONST. art. III..................... passim U.S. CONST. amend. VII .................... 1, 5 vii STATUTES AND REGULATIONS 28 U.S.C. § 1254(1) .......................... 1 35 U.S.C. § 103 ............................. 4 35 U.S.C. § 261 ............................ 11 35 U.S.C. § 311(a) ........................... 3 35 U.S.C. § 311(b) ........................... 3 35 U.S.C. § 318(a) ........................... 3 37 C.F.R. § 42.100(a) ......................... 3 125 Stat. 299 ............................... 3 OTHER AUTHORITIES 2 JOSEPH STORY, COMMENTARIES ON EQUITY JURISPRUDENCE (Melville M. Bigelow ed., Little, Brown, & Co., 13th ed. 1886) ............... 9 3 WILLIAM BLACKSTONE, COMMENTARIES ........ 12 Brief for Intervenor—Director of the United States Patent and Trademark Office, Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, 639 F. App’x 639 (Fed. Cir. 2016) .................. 7 Oren Bracha, Owning Ideas: A History of Anglo- American Intellectual Property (June 2005) (unpublished Ph.D. thesis, Harvard Law School), https://law.utexas.edu/faculty/obracha/disserta tion/pdf/chapter1.pdf...................... 6 viii General information concerning patents, USPTO (Oct. 2015), https://www.uspto.gov/patents- getting-started/general-information-concerning- patents............................... 7, 8 H.R. Rep. No. 112-98, pt. 1 (2011) .............. 3 Adam Mossoff, Patents As Constitutional Private Property: The Historical Protections Of Patents Under The Takings Clause, 87 B.U. L. REV. 689 (2007) ................................. 11 1 PETITION FOR A WRIT OF CERTIORARI Petitioner Dragon Intellectual Property, LLC respectfully submits this petition for a writ of certiorari to review the judgment of the U.S. Court of Appeals for the Federal Circuit. OPINIONS AND ORDERS BELOW The order of the Federal Circuit affirming the opinion and order of the Patent Trial and Appeal Board (PTAB) (App., infra 1-10) is unreported and available at 2017 U.S. App. LEXIS 21707 (Fed. Cir. November 1, 2017). The opinion and order of the PTAB (App., infra 11-36) is unreported and available at 2016 Pat. App. LEXIS 7559 (PTAB June 15, 2016). STATEMENT OF JURISDICTION The court of appeals entered its order on November 1, 2017. An application to extend the time to file a petition for a writ of certiorari was granted on January 25, 2018, making the petition due on or before March 16, 2018. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). CONSTITUTIONAL PROVISIONS INVOLVED The Seventh Amendment of the United States Constitution provides: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re- examined in any Court of the United States, than according to the rules of the common law. 2 INTRODUCTION This petition presents the same issue currently before this Court in Oil States Energy Services: whether the Constitution permits an administrative agency to extinguish a patentee’s private issued patent rights without a trial by jury. Because the grant of certiorari in Oil States Energy Services is relevant to this case, this Court should hold this petition pending the outcome of Oil States Energy Services. Should the Court determine in Oil States Energy Services that IPRs are unconstitutional, Petitioner respectfully requests that the Court grant this petition, vacate the judgment below, and remand with an instruction to dismiss for want of jurisdiction. STATEMENT OF THE CASE Patents create property rights, protected by the Constitution. Once a patent is granted, it “is not subject to be revoked or canceled by the president, or any other officer of the Government” because “[i]t has become the property of the patentee, and as such is entitled to the same legal protection as other property.” McCormick Harvesting Mach. Co. v. C. Aultman & Co., 169 U.S. 606, 608-09 (1898). The sole patent involved in this case, U.S. Pat. No. 5,930,444 (the ’444 patent), which is owned by the petitioner, was granted by the PTO on July 27, 1999. In September, 2011—more than a decade later—Congress passed the America Invents Act (the AIA) to combat what it perceived as inefficiencies in patent litigation. The AIA made several significant changes to the U.S. patent system, including abolishing inter partes reexamination and replacing it with inter partes review 3 (IPR). 125 Stat. at 299, 305. The AIA also renamed the PTO’s Board of Patent Appeals and Interferences, which is now the Patent Trial and Appeal Board (the Board). Id. at 290. The old inter partes reexamination proceeding differs significantly from the new inter partes review proceeding in that the former included neither a discovery process nor a trial, while the latter includes both. As such, the AIA allows the Board to review existing patents and extinguish those rights in a true adversarial process, via the newly created inter partes review. See 35 U.S.C. §§ 311(a) & 318(a); 37 C.F.R. § 42.100(a); H.R. Rep. No. 112-98, pt. 1, at 46-47 (2011). Inter partes review commences when a party—often an alleged patent infringer—asks the Board to reconsider the PTO’s issuance of an existing patent and invalidate it on the ground that it was anticipated by prior art or obvious. 35 U.S.C. § 311(b). Historically, though, suits to invalidate patents would have been tried before a jury in a court of law.
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