The non-reviewability provision and its implicationsThe America Invents Act (“AIA”) stipulates that the USPTO’s decision regarding the institution of a post-grant trial proceeding shall be final and non-appealable. This seemingly straightforward pragmatic law aims to delegate authority to the USPTO over matters that it possesses expertise on and is arguably uniquely situated to determine. However, the issues are more complex than meets the eye because constitutional concerns governing the reviewability of an Article I court by an Article III court are believed by many to be mandated by the Constitution. In short the argument follows that an Article I court, under the direction of the Executive branch, cannot usurp power from an Article III court, by way of Legislative action. Consider for a moment the following thought provoking questions:

  1. Is it constitutionally permissible for an Article I court, operated under the Executive Branch, to strip away patent property rights without the supposed constitutional guarantees of an Article III court’s oversight and that little elephant in the room called Due Process?
  2. Does Due Process merely guarantee a procedural mechanism, not necessarily an Article III mechanism?
  3. Is the presumption of reviewability of an Article I court validly rebuffed by the pragmatic desire for post-grant trial institutions to be final, non-appealable, and overseen by individuals of technical expertise?

If the “un-reviewability provision” were to be broadly accepted, where would it end? If Congress can make one agencies opinion infallible by the removal of judicial review the logical conclusion is that they can and would make other agencies insulated from judicial review. Would Congress be able to delegate sweeping authority to the IRS to institute administrative trials for tax collection purposes and insulate the IRS from the checks and balances of Judicial Review? Would the EPA be able to broadly pass regulations, adjudicate those regulations, and go entirely unchecked just because Congress said so? Many would emphatically cringe as these scenarios are stupefyingly horrific.