On June 10, 2019, the Supreme Court issued its 6-3 decision in Return Mail, Inc. v. United States Postal Service (decision available here). The American Invents Act of 2011 created the Patent Trial and Appeal Board, and allowed three new types of administrative proceedings (IPR, CBM, and PGR proceedings) before the Board that allow a “person,” other than the patent owner, to challenge the validity of a patent post-issuance. The Court found that the Government was not a “person” under the statute, such that the PTAB proceedings are not available to it.
The Court essentially resolved the case based on (i) the principle that, “in the absence of an express statutory definition, the Court applies a longstanding interpretive presumption that ‘person’ does not include the sovereign” and (ii) the Dictionary Act, 1 U.S.C. § 1, which excludes the Government from the definition of “person.” Congress, of course, is free to change the statute and make post-grant proceedings available to the Government. But until then, the Government cannot invoke these post-granting proceedings.