Post-IPR: What Happens If IPRs are Unconstitutional? (Part I)

It is difficult for me to judge the merits of the Oil States constitutional arguments as I am neither a legal historian, a constitutional law expert, nor an expert on administrative law.  What I do know is that it would be a rather big deal if the Supreme Court ruled that the IPR regime is constitutionally prohibited.

My question of the day:

Assuming hypothetically that IPR is ruled unconstitutional, how should the courts and PTO deal with the thousands of patents whose claims have already been found unpatentable and cancelled by the PTAB?

An easy practical answer is that Oil States would effectively overrule those administrative decisions and thus removes any preclusive impact of an IPR cancellation.  That approach runs into significant problems when a court has already relied upon an IPR cancellation to issued a final judgment (with appeals exhausted).  Our federal courts strongly favor finality of judgments and are wont to revisit those judgments even when later evidence suggests that the judgment was based upon faulty information.

I should note here, however, that IPR cancellations or ordinarily not relied upon for their preclusive effect, but rather courts hold essentially that a patentee has no standing to assert cancelled claims – the patentee’s cause of action goes away.  In a property sense, the patentee no longer has any property right to the cancelled claims.  With that theory in mind, it is not clear to me that win for Oil States would automatically annul prior IPR final decisions.  Rather, those already-cancelled claims are likely to require a revival action by the PTO before the patents are again assertable.