On July 30, the Federal Circuit issued a decision in Celgene Corporation v. Peter (Nos. 2018-1167, -1168, -1169, and -1171), where the patent owner argued that the PTAB’s authority to cancel claims through IPR amounted to an unconstitutional taking as applied to pre-AIA patents. Numerous patent owners have raised similar challenges since the Supreme Court expressly reserved judgment on the issue in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 138 S. Ct. 1365, 1379 (2018). The Federal Circuit’s decision puts that issue to rest (at least for now) and confirms that all issued patents remain subject to IPR.
The Celgene appeal arose