It's definitely FUBAR right now!
I think the way PTAB is currently handling the IPR process is unconstitutional, but there could very easily be adjustments to the process, making it constitutional. Instead of having 3 judges making final decisions, implement a jury trial. And, strictly enforce (by severe penalty) a full 7 degrees of separation from any involvement between the USPTO staff and Corporate America. I still don't understand why its allowed for corporate america to have any lobbying involvement in government.
With that said, in Oil States vs., I don't think the PTAB will be found unconstitutional/the legislation struck down by the courts (it would just create too much of a $h!t storm for all those previous IPR cases). That would cause even more problems. I do think if (and likely) changes are demanded by the court, then all IPRs stay pending the completion of those "court approved" changes (then how do those changes take place?, If we need new legislation for that, then GOOD LUCK with our congress), which blows this whole VP thing out even longer, maybe 1-2 years.
In VP's case I would like to think that the PTAB is wrong and should be done away with, but as a governing body, I do think there does need to be a corrective process for over-reaching patents. For example, there was a case not to long ago where big pharma scientists were trying to patent the rights to different genes within everyone's DNA. Thank God that was shot down, but imagine if it had passed and there was no corrective process to reverse it?
The victory for VP was having the patents granted in the first place, which Prior to the PTAB/IPR meant they were enforceable. I think the real question is how do patent owners enforce patent rights without ending up in court forever being drowned by legal fees. So much more to say on this, but out of time.
