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June 24, 2020


The problem with both Celgene & Enzo (and this is an entirely sufficient reason for the Court to take a pass on both, quite regardless of what the Court thinks of the merits of the Takings challenge) is that neither case is really in the right procedural posture to support an examination of the Takings issue.

The V amendment does not forbid the government taking property. In fact, the V amendment has historically been read to *allow* the government to take private property, *so long as* just compensation is paid. In other words, if Celgene and Enzo really believed that their property had been taken, then the appropriate next step would have been for them to seek just compensation (presumably in a suit against the government in the Court of Federal Claims). Neither appellant ever brought such a suit, however. Therefore, the Takings case that they purport to be making is not yet ripe.

No sense in the Court wasting its time taking the appeal where the appellant cannot even be troubled to take the steps necessary to make their case ripe for appellate review.

The prior Sup. Ct. decisions on AIA constitutionality challenges did not any "pass" on that issue. Nor was it ever very likely that the Sup. Ct. will strike down the most important parts of major legislation passed by Congress on a broad bi-partisan basis after six years of consideration. They traditionally, for good reasons, avoid such direct confrontations with the clear will of Congress. Nor are many of the the latest constitutional cert challenges providing appealing facts. So yes, after all these years it is time to face the reality that "the AIA's post-grant review regime appears to be here to stay" as Kevin concludes.

Just to be clear, I agree with Paul Morgan that the merits of this challenge are weak. AIA trials are not likely to succumb to *any* constitutional challenge, because they are constitutionally supportable.

Even if, however, the SCotUS wanted to end all doubt on this score by taking the appeal and affirming the circuit court, the SCotUS would presumably not want to take one of *these* cases. These cases have the problem of being unripe, even setting aside the weakness on the merits of the Takings argument. That makes it harder for the SCotUS to reach the merits and really settle the issue once and for all (if the SCotUS wished so to do).

Mr. DeLassus,

Your position is simply not correct. I do not have the case at my fingertips, but I am fully aware that not only has it been mentioned multiple times over several patent blogs, but was presented directly on point to an earlier comment of yours in exactly the same vein.

Mr. Morgan,

Your words run into direct conflict with the admonitions of the Oil States case.

Maybe the both of you should 'cheerlead' less.

Of that, well, I remain:

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