For two months they have sat on the Supreme Court docket, casting a pall over the Patent Trial and Appeal Board. The briefs of Oil States Energy Services LLC and some 25 amici curiae take direct constitutional aim at the PTAB. They argue that patents are a private right that can be extinguished only by an Article III court. The high court has set a Nov. 27 hearing.

Now it’s finally time for the respondents and their amici to try to save the PTAB. Greene’s Energy Group LLC, the U.S. solicitor general and a handful of amici have begun filing response briefs. They’re seeking to shift the focus from Article III to Article I, which they say gives Congress the power to reevaluate patents using procedures such as inter partes review (IPR).

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The pro-IPR forces can now boast one biotech company as amicus, Silicon Valley’s Gilead Sciences Inc. Gilead has joined SAP America Inc., Xilinx Inc. and others, represented by John Vandenberg and Andrew Mason of Klarquist Sparkman. And a group of 72 law professors led by Stanford’s Mark Lemley, Chicago-Kent College of Law’s Greg Reilly and Duke Law School’s Arti Rai are supporting the PTAB and IPRs, in opposition to a group of 27 led by George Washington’s Adam Mossoff.

“Inter partes review is a quintessential example of constitutionally-permissible administrative adjudication,” the Lemley group argues.

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“If the Seventh Amendment is concerned with preserving the fundamental essence of a right to jury trial as it existed in history,” Lemley writes, “it makes little sense to find such a right to exist in a practice that was uncommon before 1978 and not truly prevalent until the late 1980s.”