Retailers ask court to uphold constitutionality of IPR

The National Retail Federation (NRF) said it has called on the US Supreme Court to uphold the constitutionality of the inter partes review (IPR) process that allows many “patent troll” disputes to be heard administratively at the US Patent and Trademark Office (USPTO) without the need to go to court.

The NRF said the court heard oral arguments on Monday morning in Oil States v. Greene’s Energy Group, a case that examines the constitutionality of the IPR process.

The NRF said that under IPR, disputes can be heard by the USPTO’s Patent Trial and Appeal Board, an option that can resolve allegations more quickly and with less expense than full-blown patent litigation.

“Retailers are innovators, and as a byproduct of this they are end users of hundreds of forms of advanced technology that allow them to deliver goods and services to consumers faster and for more value,” said NRF general counsel Stephanie Martz.

“Patent trolls have targeted retailers over and over again to try to extract extortionate settlements from these innocent users of products.

“The sensible way to resolve an infringement claim is to allow the patent office to apply its expertise rather than incurring high litigation costs.

“There’s no question that this process is smart, efficient and entirely within the authority of the office under the Constitution.”

The NRF and the Retail Litigation Center said in a friend-of-the-court brief filed with the Supreme Court in October: “IPR creates an efficient and constitutional mechanism to resolve certain disputes about a patent’s validity.

“Retailers favor the availability of IPR because the PTAB can expunge invalid patent claims without the burdensome cost and winner-takes-all posture of litigation and settlement …

“The IPR process has successfully eliminated and deterred litigation based on dubious patent claims and saved retailers and consumers millions of dollars annually.

“If this court interprets the PTAB as unconstitutional … the retail industry will have less ability to protect itself against the threat of infringement liability of invalid patents and consumers will unnecessarily pay higher prices and suffer loss of competition for reasons wholly unrelated to scientific progress and innovation.”