U.S. Supreme Court Aguilar v. Texas, 378
U.S. 108 (1964) Aguilar v. Texas No. 548 Argued March 25-26,
1964 Decided June 15, 1964 378
U.S. 108 CERTIORARI TO THE COURT OF CRIMINAL
APPEALS OF TEXAS Syllabus The affidavit given by police officers to obtain a state search
warrant stated that:

															"Affiants have received reliable information from a credible
person and do believe that heroin . . . and other narcotics . . .
are being kept at the above described premises for the purpose of
sale and use contrary to the provisions of the law."

															The affidavit provided no further information concerning either
the undisclosed informant or the reliability of the information.
The warrant was issued, a search made, and the evidence obtained
was admitted at the trial at which petitioner was found guilty of
possessing heroin. Held: 1. The standard of reasonableness for obtaining a search warrant
is the same under the Fourth and the Fourteenth Amendments. Ker
v. California, 374 U. S. 23 ,
followed. P. 378 U. S.
110 .

															2. Although an affidavit supporting a search warrant may be
based on hearsay information and need not reflect the direct
personal observations of the affiant, the magistrate must be
informed of some of the underlying circumstances relied on by the
person providing the information and some of the underlying
circumstances from which the affiant concluded that the informant,
whose identity was not disclosed, was creditable or his information
reliable. Giordenello v. United States, 357 U.
S. 480 , followed. Pp. 378 U. S.
110 -115.

															172 Tex.Cr.R. 629, 631, 362
S.W.2d 111 , 112, reversed and remanded. Page 378 U. S. 109 MR. JUSTICE GOLDBERG delivered the opinion of the Court.

															This case presents questions concerning the constitutional
requirements for obtaining a state search warrant.

															Two Houston police officers applied to a local Justice of the
Peace for a warrant to search for narcotics in petitioner's home.
In support of their application, the officers submitted an
affidavit which, in relevant part, recited that:

															"Affiants have received reliable information from a credible
person and do believe that heroin, marijuana, barbiturates and
other narcotics and narcotic paraphernalia are being kept at the
above described premises for the purpose of sale and use contrary
to the provisions of the law. [ Footnote 1 ]"

															The search warrant was issued.

															In executing the warrant, the local police, along with federal
officers, announced at petitioner's door that they Page 378 U. S. 110 were police with a warrant. Upon hearing a commotion within the
house, the officers forced their way into the house and seized
petitioner in the act of attempting to dispose of a packet of
narcotics.

															At his trial in the state court, petitioner, through his
attorney, objected to the introduction of evidence obtained as a
result of the execution of the warrant. The objections were
overruled, and the evidence admitted. Petitioner was convicted of
illegal possession of heroin, and sentenced to serve 20 years in
the state penitentiary. [ Footnote
2 ] On appeal to the Texas Court of Criminal Appeals, the
conviction was affirmed, 172 Tex.Cr.R. 629, 362
S.W.2d 111 , affirmance upheld on rehearing, 172
Tex.Cr.R. 631, 362 S.W.2d 112. We granted a writ of certiorari to
consider the important constitutional questions involved. 375 U.S.
812.

															In Ker v. California, 374 U. S. 23 , we
held that the Fourth "Amendment's proscriptions are enforced
against the States through the Fourteenth Amendment," and that "the
standard of reasonableness is the same under the Fourth and
Fourteenth Amendments." Id. at 374 U. S. 33 .
Although Ker involved a search without a warrant, that
case must certainly be read as holding that the standard for
obtaining a search warrant is likewise "the same under the Fourth
and Fourteenth Amendments."

															An evaluation of the constitutionality of a search warrant
should begin with the rule that

															"the informed and deliberate determinations of magistrates
empowered to issue warrants . . . are to be preferred over the
hurried action Page 378 U. S. 111 of officers . . . who may happen to make arrests." United States v. Lefkowitz, 285 U.
S. 452 , 285 U. S. 464 :
The reasons for this rule go to the foundations of the Fourth
Amendment. A contrary rule

															"that evidence sufficient to support a magistrate's
disinterested determination to issue a search warrant will justify
the officers in making a search without a warrant would reduce the
Amendment to a nullity and leave the people's homes secure only in
the discretion of police officers." Johnson v. United States, 333 U. S.
10 , 333 U. S. 14 .
Under such a rule, "resort to (warrants) would ultimately be
discouraged." Jones v. United States, 362 U.
S. 257 , 362 U. S. 270 .
Thus, when a search is based upon a magistrate's, rather than a
police officer's, determination of probable cause, the reviewing
courts will accept evidence of a less "judicially competent or
persuasive character than would have justified an officer in acting
on his own without a warrant," ibid., and will sustain the
judicial determination so long as "there was substantial basis for
[the magistrate] to conclude that narcotics were probably present .
. . ." Id. at 362 U. S. 271 .
As so well stated by Mr. Justice Jackson:

															"The point of the Fourth Amendment which often is not grasped by
zealous officers is not that it denies law enforcement the support
of the usual inferences which reasonable men draw from evidence.
Its protection consists in requiring that those inferences be drawn
by a neutral and detached magistrate instead of being judged by the
officer engaged in the often competitive enterprise of ferreting
out crime." Johnson v. United States, supra, at 333 U. S.
13 -14.

															Although the reviewing court will pay substantial deference to
judicial determinations of probable cause, the court must still
insist that the magistrate perform his "neutral and detached"
function, and not serve merely as a rubber stamp for the
police. Page 378 U. S. 112 In Nathanson v. United States, 290 U. S.
41 , a warrant was issued upon the sworn allegation that
the affiant "has cause to suspect and does believe" that certain
merchandise was in a specified location. Id. at 290 U. S. 44 .
The Court, noting that the affidavit "went upon a mere affirmation
of suspicion and belief, without any statement of adequate
supporting facts, " id. at 290 U. S. 46 (emphasis added), announced the following rule:

															"Under the Fourth Amendment, an officer may not properly issue a
warrant to search a private dwelling unless he can find probable
cause therefore from facts or circumstances presented to
him under oath or affirmation. Mere affirmance of belief or
suspicion is not enough." Id. at 290 U. S. 47 .
(Emphasis added.)

															The Court in Giordenello v. United States, 357 U.
S. 480 , applied this rule to an affidavit similar to
that relied upon here. [ Footnote
3 ] Affiant in that case swore that petitioner "did receive,
conceal, etc., narcotic drugs . . . with knowledge of unlawful
importation . . . ." Id. at 357 U. S. 481 .
The Court announced the guiding principles to be:

															"that the inferences from the facts which lead to the complaint
'[must] be drawn by a neutral and detached Page 378 U. S. 113 magistrate instead of being judged by the officer engaged in the
often competitive enterprise of ferreting out crime.' Johnson
v. United States, 333 U. S. 10 , 333 U. S.
14 . The purpose of the complaint, then, is to enable the
appropriate magistrate . . . to determine whether the 'probable
cause' required to support a warrant exists. The Commissioner must
judge for himself the persuasiveness of the facts relied on by a
complaining officer to show probable cause. He should not accept
without question the complainant's mere conclusion . . . ."

															357 U.S. at 357 U. S.
486 .

															The Court, applying these principles to the complaint in that
case, stated that:

															"it is clear that it does not pass muster because it does not
provide any basis for the Commissioner's determination . . . that
probable cause existed. The complaint contains no affirmative
allegation that the affiant spoke with personal knowledge of the
matters contained therein; it does not indicate any sources for the
complainant's belief; and it does not set forth any other
sufficient basis upon which a finding of probable cause could be
made." Ibid. The vice in the present affidavit is at least as great as in Nathanson and Giordenello. Here, the "mere
conclusion" that petitioner possessed narcotics was not even that
of the affiant himself; it was that of an unidentified informant.
The affidavit here not only "contains no affirmative allegation
that the affiant spoke with personal knowledge of the matters
contained therein," it does not even contain an "affirmative
allegation" that the affiant's unidentified source "spoke with
personal knowledge." For all that appears, the source here merely
suspected, believed or concluded that there were narcotics in
petitioner's Page 378 U. S. 114 possession. [ Footnote 4 ] The
magistrate here certainly could not "judge for himself the
persuasiveness of the facts relied on . . . to show probable case."
He necessarily accepted "without question" the informant's
"suspicion," "belief," or "mere conclusion."

															Although an affidavit may be based on hearsay information, and
need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U. S. 257 , the
magistrate must be informed of some of the underlying circumstances
from which the informant concluded that the narcotics were where he
claimed they were, and some of the underlying circumstances from
which the officer concluded that the informant, whose identity need
not be disclosed, see Rugendorf v. United States, 376 U. S. 528 , was
"credible" or his information "reliable." [ Footnote 5 ] Otherwise, Page 378 U. S. 115 "the inferences from the facts which lead to the complaint" will
be drawn not "by a neutral and detached magistrate," as the
Constitution requires, but, instead, by a police officer "engaged
in the often competitive enterprise of ferreting out crime," Giordenello v. United States, supra, 357 U.S. at 357 U. S. 486 ; Johnson v. United States, supra, at 333 U. S. 14 ,
or, as in this case, by an unidentified informant.

															We conclude, therefore, that the search warrant should not have
been issued, because the affidavit did not provide a sufficient
basis for a finding of probable cause, and that Page 378 U. S. 116 the evidence obtained as a result of the search warrant was
inadmissible in petitioner's trial.

															The judgment of the Texas Court of Criminal Appeals is reversed,
and the case remanded for proceedings not inconsistent with this
opinion. Reversed and remanded. [ Footnote 1 ]

															The record does not reveal, nor is it claimed, that any other
information was brought to the attention of the Justice of the
Peace. It is elementary that, in passing on the validity of a
warrant, the reviewing court may consider only information
brought to the magistrate's attention. Giordenello v. United
States, 357 U. S. 480 , 79
C.J.S. Searches and Seizures � 74, p. 872 (collecting cases). In Giordenello, the Government pointed out that the officer
who obtained the warrant "had kept petitioner under surveillance
for about one month prior to the arrest." The Court, of course,
ignored this evidence, since it had not been brought to the
magistrate's attention. The fact that the police may have kept
petitioner's house under surveillance is thus completely irrelevant
in this case, for, in applying for the warrant, the police did not
mention any surveillance. Moreover, there is no evidence in the
record that a surveillance was actually set up on petitioner's
house. Officer Strickland merely testified that "we wanted to set up surveillance on the house." If the fact and results of
such a surveillance had been appropriately presented to the
magistrate, this would, of course, present an entirely different
case.

															[ Footnote 2 ]

															Petitioner was also indicted on charges of conspiring to violate
the federal narcotics laws. Act of February 9, 1909, c. 100, 35
Stat. 614, § 2, as amended, 21 U.S.C. § 174; Internal Revenue Code
of 1954, § 7237(b), as amended, 26 U.S.C. § 7237(b). He was found
not guilty by the jury. His codefendants were found guilty, and
their convictions affirmed on appeal. Garcia v. United
States, 315 F.2d 679.

															[ Footnote 3 ]

															In Giordenello, although this Court construed the
requirement of "probable cause" contained in Rule 4 of the Federal
Rules of Criminal Procedure, it did so "in light of the
constitutional" requirement of probable cause which that Rule
implements. Id. at 357 U. S. 485 .
The case also involved an arrest warrant, rather than a search
warrant, but the Court said:

															"The language of the Fourth Amendment, that '. . . no Warrants
shall issue, but upon probable cause . . . ,' of course applies to
arrest, as well as search warrants." Id. at 357 U. S.
485 -486. See Ex parte
Burford , 3 Cranch 448; McGrain v.
Daugherty, 273 U. S. 135 , 273 U. S.
154 -157. The principles announced in Giordenello derived, therefore, from the Fourth Amendment,
and not from our supervisory power. Compare Jencks v. United
States, 353 U. S. 657 .
Accordingly, under Ker v. California, 374 U. S.
23 , they may properly guide our determination of
"probable cause" under the Fourteenth Amendment.

															[ Footnote 4 ]

															To approve this affidavit would open the door to easy
circumvention of the rule announced in Nathanson and Giordenello. A police officer who arrived at the
"suspicion," "belief," or "mere conclusion" that narcotics were in
someone's possession could not obtain a warrant. But he could
convey this conclusion to another police officer, who could then
secure the warrant by swearing that he had "received reliable
information from a credible person" that the narcotics were in
someone's possession.

															[ Footnote 5 ]

															Such an affidavit was sustained by this Court in Jones v.
United States, 362 U. S. 257 . The
affidavit in that case reads as follows:

															"Affidavit in Support of a U.S. Commissioners Search Warrant for
Premises, 1436 Meridian Place, N.W., Washington, D.C., apartment
36, including window spaces of said apartment. Occupied by Cecil
Jones and Earline Richardson."

															"In the late afternoon of Tuesday, August 20, 1957, I, Detective
Thomas Didone, Jr. received information that Cecil Jones and
Earline Richardson were involved in the illicit narcotic traffic
and that they kept a ready supply of heroin on hand in the above
mentioned apartment. The source of information also relates that
the two aforementioned persons kept these same narcotics either on
their person, under a pillow, on a dresser or on a window ledge in
said apartment. The source of information goes on to relate that,
on many occasions, the source of information has gone to said
apartment and purchased narcotic drugs from the above mentioned
persons and that the narcotics were secreated [ sic ] in the
above mentioned places. The last time being August 20, 1957."

															"Both the aforementioned persons are familiar to the undersigned
and other members of the Narcotic Squad. Both have admitted to the
use of narcotic drugs and display needle marks as evidence of
same."

															"This same information, regarding the illicit narcotic traffic,
conducted by Cecil Jones and Earline Richardson, has been given to
the undersigned and to other officers of the narcotic squad by
other sources of information."

															"Because the source of information mentioned in the opening
paragraph has given information to the undersigned on previous
occasion and which was correct, and because this same information
is given by other sources does believe that there is now illicit
narcotic drugs being secreated [ sic ] in the above
apartment by Cecil Jones and Earline Richardson."

															"Det. Thomas Didone, Jr., Narcotics Squad, MPDC."

															"Subscribed and sworn to before me this 21 day of August,
1957."

															"James F. Splain, U.S. Commissioner, D.C." Id. at 362 U. S.
267 -268, n. 2. Compare, e.g., Hernandez v. People, 385 P.2d 996 ,
where the Supreme Court of Colorado, accepting a confession of
error by the State Attorney General, held that a search warrant
similar to the one here in issue violated the Fourth Amendment. The
court said:

															"Before the issuing magistrate can properly perform his official
function, he must be apprised of the underlying facts and
circumstances which show that there is probable cause . . . ." Id. at ___, 385 P.2d at 999.

															MR. JUSTICE HARLAN, concurring.

															But for Ker v. California, 374 U. S.
23 , I would have voted to affirm the judgment of the
Texas court. Given Ker, I cannot escape the conclusion
that to do so would tend to "relax Fourth Amendment standards . . .
in derogation of law enforcement standards in the federal system . . ." (my concurring opinion in Ker, supra, at 374 U. S. 45 -46,
emphasis added). Contrary to what is suggested in the dissenting
opinion of my Brother CLARK in the present case ( post, p. 378 U. S. 118 ,
note 1), the standards laid down in Giordenello v. United
States, 357 U. S. 480 ,
did, in my view, reflect constitutional requirements. Being
unwilling to relax those standards for federal prosecutions, I
concur in the opinion of the Court.

															MR. JUSTICE CLARK, whom MR. JUSTICE BLACK and MR. JUSTICE
STEWART join, dissenting.

															First, it is well to point out the information upon which the
search warrant in question was based: about January 1, 1960,
Officers Strickland and Rogers from the narcotics division of the
Houston Police Department received reliable information from a
credible person that petitioner Aguilar had heroin and other
narcotic drugs and narcotic paraphernalia in his possession at his
residence, 509 Pinckney Street, Houston, Texas; after receiving
this information, the officers, the record indicates, kept the
premises of petitioner under surveillance for about a week.

															On January 8, 1960, the two officers applied for a search
warrant and executed an affidavit before a justice Page 378 U. S. 117 of the peace in which they alleged under oath that petitioner's
residence at 509 Pinckney Street

															"is a place where we each have reason to believe and do believe
that [Aguilar] . . . has in his possession therein narcotic drugs .
. . for the purpose of the unlawful sale thereof, and where such
narcotic drugs are unlawfully sold."

															In addition and in support of their belief, the officers
included in the affidavit the further allegation that they

															"have received reliable information from a credible person and
do believe that heroin . . . and other narcotics and narcotic
paraphernalia are being kept at . . . [petitioner's] premises for
the purpose of sale and use contrary to the provisions of the
law."

															Upon executing the warrant issued on the strength of this
affidavit, the officers knocked on the door of Aguilar's house.
Someone inside asked who was there, and the officers replied that
they were police and that they had a search warrant. At this, they
heard someone "scuffle and start to run inside of the house." The
officers entered and pursued the petitioner, who ran into a back
bathroom. Petitioner threw a packet of heroin into the commode, but
an officer retrieved the packet before it could be flushed down the
drain. I At trial, petitioner objected to the introduction into evidence
of the heroin obtained through execution of the search warrant on
the ground that the affidavit was "nothing more than hearsay." The
Court holds the affidavit insufficient and sets aside the
conviction on the basis of two cases, neither of which is
controlling.

															First is Nathanson v. United States, 290 U. S.
41 (1933). In that case, the affidavit stated that the
affiant had "cause to suspect and [did] believe that certain
merchandise" was on the premises described. There was nothing in Nathanson, either in the affidavit or in the other proof
introduced at trial, to suggest that any facts Page 378 U. S. 118 had been brought out to support a reasonable belief or even a
suspicion. Accordingly, the Court held that "[m]ere affirmance of
belief or suspicion is not enough." At 290 U. S. 47 . But
in Fourth Amendment cases, findings of reasonableness or of
probable cause necessarily rest on the facts and circumstances of
each particular case. In Aguilar, the affidavit was based
not only on "affirmance of belief," but, in addition, upon
" reliable information from a credible person " plus a
week's surveillance by the affiants. (Emphasis supplied.) Nathanson is, therefore, not apposite.

															The second case the Court relies on is Giordenello v. United
States, 357 U. S. 480 (1958). There, the affidavit alleged that "Giordenello did receive,
conceal, etc., narcotic drugs, to-wit, heroin hydrochloride with
knowledge of unlawful importation . . . ." The opinion of the
Court, by MR. JUSTICE HARLAN, after discussing Rules 3 and 4 of the
Federal Rules of Criminal Procedure, held that the defect in the
complaint was that it "does not provide any basis for the
Commissioner's determination under Rule 4 that probable cause
existed." At 357 U. S. 486 .
The dissent in the case, in commenting on the Court's holding that
the complaint was invalid, said: "The Court does not strike down
this complaint directly on the Fourth Amendment, but merely on an
extension of Rule 4." At 357 U. S. 491 .
Since Giordenello was a federal case, decided under our
supervisory powers (Rules 3 and 4 of the Federal Rules of Criminal
Procedure), it does not control here. [ Footnote 2/1 ] As we said in Ker v. California, 374 U. S. 23 , 374 U. S.
33 ,

															"the demands of our federal system compel us to distinguish
between evidence held inadmissible because of our supervisory
powers over federal courts and Page 378 U. S. 119 that held inadmissible because prohibited by the United States
Constitution."

															Even if Giordenello was rested on the Constitution, it
would not be controlling here because of the significant
differences in the facts of the two cases. In Giordenello, the Court said:

															"The complaint . . . does not indicate any sources for the
complainant's belief, and it does not set forth any other sufficient basis upon which a finding of probable cause could be
made."

															357 U.S. at 357 U. S. 486 .
(Emphasis supplied.) Here, in Aguilar's case, the affidavit did
allege a source for the complainant's belief, i.e., "reliable information from a credible person . . . that heroin . .
. and other narcotics . . . are being kept" in petitioner's
premises "for the purpose of sale and use contrary to the
provisions of the law." This takes the affidavit here entirely
outside the Giordenello holding. In Giordenello, no source of information was stated, whereas here there was a
reliable one. The affidavit thus shows "probable cause" within the
meaning of the Fourth Amendment, as that Amendment was interpreted
by this Court in Draper v. United States, 358 U.
S. 307 (1959), where it was contended that the
information given by an informant to an officer was inadmissible
because it was hearsay. The Court in Draper held that
petitioner was "entirely in error. Brinegar v. United
States . . . has settled the question the other way." At 358 U. S. 311 .
In the following year, this was reaffirmed in Jones v. United
States, 362 U. S. 257 , 362 U. S. 271 (1960): "We conclude therefore that hearsay may be the basis for a
warrant." [ Footnote 2/2 ] Page 378 U. S. 120 Furthermore, in the case of Rugendorf v. United States, decided only this Term, we held an affidavit good based on
information that an informer had seen certain furs in Rugendorf's
basement. 376 U. S. 376 U.S.
528. In the Aguilar affidavit, the informer told the
officers that narcotics were actually "kept at the above described
premises for the purpose of sale . . . ." The Court seems to hold
that what the informed says is the test of his reliability. I
submit that this has nothing to do with it. The officer's
experience with the informer is the test, and, here, the two
officers swore that the informer was credible and the information
reliable. At the hearing on the motion to suppress, Officer
Strickland testified that he delayed getting the search warrant for
a week in order to "set up surveillance on the house." The
informant's statement, Officer Strickland said, was "the first
information" received, and was only "some of" that which supported
the application for the warrant. The totality of the circumstances
upon which the officer relied is certainly pertinent to the
validity of the warrant. See the use of such testimony in Giordenello, supra, at 357 U. S. 485 , 357 U. S. 486 .
And, just as in that case, there is nothing in the record here to
show what the officers verbally told the magistrate. The
surveillance of Aguilar's house, which is confirmed by the State's
brief, apparently gave the officers further evidence upon which
they based their personal belief. Hence, the affidavit here is a
far cry from "suspicion" or "affirmance of belief." It was based on
reliable information from a credible informant plus personal
surveillance by the officers.

															Furthermore, the Courts of Appeals have often approved
affidavits similar to the one here. See, e.g., United States v.
Eisner, 297 F.2d 595 (C.A.6th Cir.); Evans v. United
States, 242 F.2d 534 (C.A.6th Cir.); United States v.
Ramirez, 279 F.2d 712, 715 (C.A.2d Cir.) (dictum); and United States v. Meeks, 313 F.2d 464 Page 378 U. S. 121 (C.A.6th Cir.). We denied certiorari in Eisner, 369
U.S. 859, although the affidavit there stated only that
"[i]nformation has been obtained by S. A. Clifford Anderson . . .
which he believes to be reliable . . . ," 297 F.2d at 596, and in Evans, 353 U.S. 976, where the affiant was a man who "came
to the headquarters of the federal liquor law enforcement officers
and stated that he wished to give information . . . ," 242 F.2d at
535.

															In summary, the information must be more than mere wholly
unsupported suspicion but less than "would justify condemnation,"
as Chief Justice Marshall said in Locke v.
United States , 7 Cranch 339, 11 U. S. 348 (1813). As Chief Justice Taft said in Carroll v. United
States, 267 U. S. 132 , 267 U. S. 162 (1925): probable cause exists where

															"the facts and circumstances within their [the officers']
knowledge and of which they had reasonably trustworthy information
[are] . . . sufficient in themselves to warrant a man of reasonable
caution in the belief that"

															an offense has been or is being committed. And as Mr. Justice
Rutledge so well stated in Brinegar v. United States, 338 U. S. 160 , 338 U. S. 176 (1949):

															"These long-prevailing standards seek to safeguard citizens from
rash and unreasonable interferences with privacy and from unfounded
charges of crime. They also seek to give fair leeway for enforcing
the law in the community's protection. Because many situations
which confront officers in the course of executing their duties are
more or less ambiguous, room must be allowed for some mistakes on
their part. But the mistakes must be those of reasonable men,
acting on facts leading sensibly to their conclusions of
probability. The rule of probable cause is a practical,
nontechnical conception affording the best compromise that has been
found for accommodating these often opposing interests. Page 378 U. S. 122 Requiring more would unduly hamper law enforcement. To allow
less would be to leave law-abiding citizens at the mercy of the
officers' whim or caprice."

															Believing that the Court has substituted a rigid, academic
formula for the unrigid standards of reasonableness and "probable
cause" laid down by the Fourth Amendment itself -- a substitution
of technicality for practicality -- and believing that the Court's
holding will tend to obstruct the administration of criminal
justice throughout the country, I respectfully dissent.

															[ Footnote 2/1 ]

															MR. JUSTICE BLACK, who joined the Court's opinion in Giordenello, joins this dissent on the basis of his belief
that Giordenello was based on Rule 4, and not on the less
exacting requirements of the Fourth Amendment.

															[ Footnote 2/2 ]

															The affidavit in Jones was more detailed, including a
statement of where the heroin might be found, viz., "on
their person, under a pillow, on a dresser or on a window ledge in
said apartment." But this detail adds nothing to the reliability of
the information furnished. Likewise, the allegation in Jones that the informer had "on previous occasion" given
information "which was correct" was contained in substance in the Aguilar affidavit.

Summary: In Aguilar v. Texas, the U.S. Supreme Court held that a search warrant based on an affidavit must provide information establishing the credibility of the informant and the reliability of the information provided. The Court found that the affidavit in this case, which stated that officers had received reliable information from a credible person, was insufficient to establish probable cause for the issuance of a search warrant. The Court emphasized the importance of providing underlying circumstances to support the informant's credibility and the reliability of the information, ensuring that searches are reasonable under the Fourth Amendment.


Oil States Energy Services, LLC v. Greene's Energy Group, LLC

NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print
goes to press.

															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 16–712

															_________________

															OIL STATES ENERGY SERVICES, LLC, PETITIONER v. GREENE’S ENERGY GROUP, LLC, et al.

															on writ of certiorari to the united states
court of appeals for the federal circuit

															[April 24, 2018]

															Justice Thomas delivered the opinion of the
Court.

															The Leahy-Smith America Invents Act, 35
U. S. C. §100 et seq. , establishes a process
called “inter partes review.” Under that process, the United States
Patent and Trademark Office (PTO) is authorized to reconsider and
to cancel an issued patent claim in limited circumstances. In this
case, we address whether inter partes review violates Article III
or the Seventh Amendment of the Constitution. We hold that it
violates neither.

															I

															A

															Under the Patent Act, the PTO is “responsible
for the granting and issuing of patents.” 35 U. S. C.
§2(a)(1). When an inventor applies for a patent, an examiner
reviews the proposed claims and the prior art to determine if the
claims meet the statutory requirements. See §§112, 131. Those
requirements include utility, novelty, and nonobviousness based on
the prior art. §§101, 102, 103. The Director of the PTO then
approves or rejects the application. See §§131, 132(a). An
applicant can seek judicial review of a final rejection. §§141(a),
145.

															B

															Over the last several decades, Congress has
created administrative processes that authorize the PTO to
reconsider and cancel patent claims that were wrongly issued. In
1980, Congress established “ ex parte reexamination,”
which still exists today. See Act To Amend the Patent and Trademark
Laws, 35 U. S. C. §301 et seq. Ex parte re-
examination permits “[a]ny person at any time” to “file a request
for reexamination.” §302. If the Director determines that there is
“a substantial new question of patentability” for “any claim of the
patent,” the PTO can reexamine the patent. §§303(a), 304. The
reexamination process follows the same procedures as the initial
examination. §305.

															In 1999, Congress added a procedure called
“inter partes reexamination.” See American Inventors Protection
Act, §§4601–4608, 113Stat. 1501A–567 to 1501A–572. Under this
procedure, any person could file a request for reexamination. 35
U. S. C. §311(a) (2006 ed.). The Director would determine
if the request raised “a substantial new question of patentability
affecting any claim of the patent” and, if so, commence a
reexamination. §§312(a), 313 (2006 ed.). The reexamination would
follow the general procedures for initial examination, but would
allow the third-party requester and the patent owner to participate
in a limited manner by filing responses and replies. §§314(a), (b)
(2006 ed.). Inter partes reexamination was phased out when the
America Invents Act went into effect in 2012. See §6, 125Stat.
299–305.

															C

															The America Invents Act replaced inter partes
reexamination with inter partes review, the procedure at issue
here. See id., at 299. Any person other than the patent
owner can file a petition for inter partes review. 35
U. S. C. §311(a) (2012 ed.). The petition can request
cancellation of “1 or more claims of a patent” on the grounds that
the claim fails the novelty or nonobviousness standards for
patentability. §311(b) . The challenges must be made “only on
the basis of prior art consisting of patents or printed
publications.” Ibid. If a petition is filed, the patent
owner has the right to file a preliminary response explaining why
inter partes review should not be insti- tuted. §313.

															Before he can institute inter partes review, the
Director must determine “that there is a reasonable likelihood that
the petitioner would prevail with respect to at least 1 of the
claims challenged.” §314(a). The decision whether to institute
inter partes review is committed to the Director’s discretion. See Cuozzo Speed Technologies, LLC v. Lee , 579 U. S.
___, ___ (2016) (slip op., at 9). The Director’s decision is “final
and nonappealable.” §314(d).[ 1 ]

															Once inter partes review is instituted, the
Patent Trial and Appeal Board—an adjudicatory body within the PTO
created to conduct inter partes review—examines the patent’s
validity. See 35 U. S. C. §§6, 316(c). The Board sits in
three-member panels of administrative patent judges. See §6(c).
During the inter partes review, the petitioner and the patent owner
are entitled to certain discovery, §316(a)(5); to file affidavits,
declarations, and written memoranda, §316(a)(8); and to receive an
oral hearing before the Board, §316(a)(10). The petitioner has the
burden of proving unpatentability by a preponderance of the
evidence. §316(e). The owner can file a motion to amend the patent
by voluntarily canceling a claim or by “propos[ing] a reasonable
number of substitute claims.” §316(d)(1)(B). The owner can also
settle with the peti- tioner by filing a written agreement prior to
the Board’s final decision, which terminates the proceedings with
respect to that petitioner. §317. If the settlement results in no
petitioner remaining in the inter partes review, the Board can
terminate the proceeding or issue a final written decision.
§317(a).

															If the proceeding does not terminate, the Board
must issue a final written decision no later than a year after it
notices the institution of inter partes review, but that deadline
can be extended up to six months for good cause. §§316(a)(11),
318(a). If the Board’s decision becomes final, the Director must
“issue and publish a certificate.” §318(b). The certificate cancels
patent claims “finally determined to be unpatentable,” confirms
patent claims “determined to be patentable,” and incorporates into
the patent “any new or amended claim determined to be patentable.” Ibid. A party dissatisfied with the Board’s decision
can seek judicial review in the Court of Appeals for the Federal
Circuit. §319. Any party to the inter partes review can be a party
in the Federal Circuit. Ibid. The Director can intervene to
defend the Board’s decision, even if no party does. See §143; Cuozzo , supra , at ___ (slip op., at 15). When
reviewing the Board’s decision, the Federal Circuit assesses “the
Board’s compliance with governing legal standards de novo and its
underlying factual determinations for substantial evidence.” Randall Mfg. v. Rea , 733 F. 3d 1355, 1362 (CA
Fed. 2013).

															II

															Petitioner Oil States Energy Services, LLC,
and respondent Greene’s Energy Group, LLC, are both oilfield
services companies. In 2001, Oil States obtained a patent relating
to an apparatus and method for protecting wellhead equipment used
in hydraulic fracturing. In 2012, Oil States sued Greene’s Energy
in Federal District Court for infringing that patent. Greene’s
Energy responded by challenging the patent’s validity. Near the
close of discovery, Greene’s Energy also petitioned the Board to
institute inter partes review. It argued that two of the patent’s
claims were unpatentable because they were anticipated by prior art
not mentioned by Oil States in its original patent application. Oil
States filed a response opposing review. The Board found that
Greene’s Energy had established a reasonable likelihood that the
two claims were unpatentable and, thus, instituted inter partes
review.

															The proceedings before the District Court and
the Board progressed in parallel. In June 2014, the District Court
issued a claim-construction order. The order construed the
challenged claims in a way that foreclosed Greene’s Energy’s
arguments about the prior art. But a few months later, the Board
issued a final written decision concluding that the claims were
unpatentable. The Board acknowledged the District Court’s contrary
decision, but nonetheless concluded that the claims were
anticipated by the prior art.

															Oil States sought review in the Federal Circuit.
In addition to its arguments about patentability, Oil States
challenged the constitutionality of inter partes review.
Specifically, it argued that actions to revoke a patent must be
tried in an Article III court before a jury. While Oil States’ case
was pending, the Federal Circuit issued an opinion in a different
case, rejecting the same constitutional arguments. MCM Portfolio
LLC v. Hewlett-Packard Co. , 812 F. 3d 1284,
1288–1293 (2015). The Federal Circuit summarily affirmed the
Board’s decision in this case. 639 Fed. Appx. 639 (2016).

															We granted certiorari to determine whether inter
partes review violates Article III or the Seventh Amendment. 582
U. S. ___ (2017). We address each issue in turn.

															III

															Article III vests the judicial power of the
United States “in one supreme Court, and in such inferior Courts as
the Congress may from time to time ordain and establish.” §1.
Consequently, Congress cannot “confer the Government’s ‘judicial
Power’ on entities outside Article III.” Stern v. Marshall , 564 U. S. 462, 484 (2011) . When determining
whether a proceeding involves an exercise of Article III judicial
power, this Court’s precedents have distinguished between “public
rights” and “private rights.” Executive Benefits Ins. Agency v. Arkison , 573 U. S. ___, ___ (2014) (slip op., at 6)
(internal quotation marks omitted). Those precedents have given
Congress significant latitude to assign adjudication of public
rights to entities other than Article III courts. See ibid. ; Stern , supra , at 488–492.

															This Court has not “definitively explained” the
distinction between public and private rights, Northern Pipeline
Constr. Co. v. Marathon Pipe Line Co. , 458 U. S.
50, 69 (1982) , and its precedents applying the public-rights
doctrine have “not been entirely consistent,” Stern , 564
U. S., at 488. But this case does not require us to add to the
“various formulations” of the public-rights doctrine. Ibid .
Our precedents have recognized that the doctrine covers matters
“which arise between the Government and persons subject to its
authority in connection with the performance of the constitutional
functions of the executive or legislative departments.” Crowell v. Benson , 285 U. S. 22 , 50 (1932). In
other words, the public-rights doctrine applies to matters
“ ‘arising between the government and others, which from their
nature do not require judicial determination and yet are
susceptible of it.’ ” Ibid. (quoting Ex parte
Bakelite Corp. , 279 U. S. 438, 451 (1929) ). Inter partes
review involves one such matter: reconsid- eration of the
Government’s decision to grant a public franchise.

															A

															Inter partes review falls squarely within the
public-rights doctrine. This Court has recognized, and the parties
do not dispute, that the decision to grant a patent is a
matter involving public rights—specifically, the grant of a public
franchise. Inter partes review is simply a reconsideration of that
grant, and Congress has permissibly reserved the PTO’s authority to
conduct that reconsideration. Thus, the PTO can do so without
violating Article III.

															1

															This Court has long recognized that the grant
of a patent is a “ ‘matte[r] involving public rights.’ ” United States v. Duell , 172 U. S. 576, 582 –583
(1899) (quoting Murray’s Lessee v. Hoboken Land &
Improvement Co. , 18 How. 272, 284 (1856)). It has the key
features to fall within this Court’s longstanding formulation of
the public-rights doctrine. Ab initio , the grant of a patent involves
a matter “arising between the government and others.” Ex parte Bakelite Corp. , supra , at 451. As this
Court has long recognized, the grant of a patent is a matter
between “ ‘the public, who are the grantors, and
. . . the patentee.’ ” Duell , supra, at 586 (quoting Butterworth v. United States ex rel.
Hoe , 112 U. S. 50, 59 (1884) ). By “issuing patents,” the
PTO “take[s] from the public rights of immense value, and bestow[s]
them upon the patentee.” United States v. American Bell
Telephone Co. , 128 U. S. 315, 370 (1888) . Specifically,
patents are “public franchises” that the Government grants “to the
inventors of new and useful improvements.” Seymour v. Osborne , 11 Wall. 516, 533 (1871); accord, Pfaff v. Wells Electronics, Inc. , 525 U. S. 55, 63 –64 (1998).
The franchise gives the patent owner “the right to exclude others
from making, using, offering for sale, or selling the invention
throughout the United States.” 35 U. S. C. §154(a)(1).
That right “did not exist at common law.” Gayler v. Wilder , 10 How. 477, 494 (1851). Rather, it is a “creature
of statute law.” Crown Die & Tool Co. v. Nye Tool
& Machine Works , 261 U. S. 24, 40 (1923) .

															Additionally, granting patents is one of “the
constitutional functions” that can be carried out by “the executive
or legislative departments” without “ ‘judicial determination.’ ” Crowell , supra , at 50–51 (quoting Ex parte
Bakelite Corp. , supra , at 452). Article I gives Congress
the power “[t]o promote the Progress of Science and useful Arts, by
securing for limited Times to Authors and Inventors the exclusive
Right to their respective Writings and Discoveries.” §8,
cl. 8. Congress can grant patents itself by statute. See, e.g., Bloomer v. McQuewan , 14 How. 539, 548–550
(1853). And, from the founding to today, Congress has authorized
the Executive Branch to grant patents that meet the statutory
requirements for patentability. See 35 U. S. C.
§§2(a)(1), 151; see also Act of July 8, 1870, §31, 16Stat. 202; Act
of July 4, 1836, §7, 5Stat. 119–120; Act of Apr. 10, 1790, ch. 7,
§1, 1Stat. 109–110. When the PTO “adjudicate[s] the patentability
of inventions,” it is “exercising the executive power.” Freytag v. Commissioner , 501 U. S. 868, 910
(1991) (Scalia, J., concurring in part and concurring in judgment)
(emphasis deleted).

															Accordingly, the determination to grant a patent
is a “matte[r] involving public rights.” Murray’s Lessee , supra , at 284. It need not be adjudicated in Article III
court.

															2

															Inter partes review involves the same basic
matter as the grant of a patent. So it, too, falls on the
public-rights side of the line.

															Inter partes review is “a second look at an
earlier administrative grant of a patent.” Cuozzo , 579
U. S., at ___ (slip op., at 16). The Board considers the same
statutory requirements that the PTO considered when granting the
patent. See 35 U. S. C. §311(b). Those statutory
requirements prevent the “issuance of patents whose effects are to
remove existent knowledge from the public domain.” Graham v. John Deere Co. of Kansas City , 383 U. S. 1, 6 (1966) .
So, like the PTO’s initial review, the Board’s inter partes review
protects “the public’s paramount interest in seeing that patent
monopolies are kept within their legitimate scope,” Cuozzo , supra , at ___ (slip op., at 16) (internal quotation marks
and alterations omitted). Thus, inter partes review involves the
same interests as the determination to grant a patent in the first
instance. See Duell , supra , at 586.

															The primary distinction between inter partes
review and the initial grant of a patent is that inter partes
review occurs after the patent has issued. But that
distinction does not make a difference here. Patent claims are
granted subject to the qualification that the PTO has “the au-
thority to reexamine—and perhaps cancel—a patent claim” in an inter
partes review. See Cuozzo , supra , at ___ (slip op.,
at 3). Patents thus remain “subject to [the Board’s] authority” to
cancel outside of an Article III court. Crowell , 285
U. S., at 50.

															This Court has recognized that franchises can be
qualified in this manner. For example, Congress can grant a
franchise that permits a company to erect a toll bridge, but
qualify the grant by reserving its authority to revoke or amend the
franchise. See, e.g., Louisville Bridge Co. v. United States , 242 U. S. 409, 421 (1917) (collecting
cases). Even after the bridge is built, the Government can exercise
its reserved authority through legislation or an administrative
proceeding. See, e.g., id., at 420–421; Hannibal Bridge
Co. v. United States , 221 U. S. 194, 205 (1911) ; Bridge Co. v. United States , 105 U. S. 470, 478
–482 (1882). The same is true for franchises that permit companies
to build railroads or telegraph lines. See, e.g., United
States v. Union Pacific R. Co. , 160 U. S. 1, 24
–25, 37–38 (1895).

															Thus, the public-rights doctrine covers the
matter resolved in inter partes review. The Constitution does not
prohibit the Board from resolving it outside of an Article III
court.

															B

															Oil States challenges this conclusion, citing
three decisions that recognize patent rights as the “private
property of the patentee.” American Bell Telephone Co. , 128
U. S., at 370; see also McCormick Harvesting Machine
Co. v. Aultman , 169 U. S. 606, 609 (1898) (“[A
granted patent] has become the property of the patentee”); Brown v. Du- chesne , 19 How. 183, 197 (1857) (“[T]he
rights of a party under a patent are his private property”). But
those cases do not contradict our conclusion.

															Patents convey only a specific form of property
right—a public franchise. See Pfaff , 525 U. S., at
63–64. And patents are “entitled to protection as any other
property, consisting of a franchise .” Seymour , 11
Wall. at 533 (emphasis added). As a public franchise, a patent can
confer only the rights that “the statute prescribes.” Gayler , supra , at 494; Wheaton v. Peters , 8 Pet. 591, 663–664 (1834) (noting that Congress has
“the power to prescribe the conditions on which such right shall be
enjoyed”). It is noteworthy that one of the precedents cited by Oil
States acknowledges that the patentee’s rights are “derived
altogether” from statutes, “are to be regulated and measured by
these laws, and cannot go beyond them.” Brown , supra ,
at 195.[ 2 ]

															One such regulation is inter partes review. See Cuozzo , 579 U. S., at ___ (slip op., at 3). The Patent
Act provides that, “[s]ubject to the provisions of this title,
patents shall have the attributes of personal property.” 35
U. S. C. §261. This provision qualifies any property
rights that a patent owner has in an issued patent, subjecting them
to the express provisions of the Patent Act. See eBay Inc. v. MercExchange, L. L. C. , 547 U. S. 388, 392 (2006) .
Those provisions include inter partes review. See §§311–319.

															Nor do the precedents that Oil States cites
foreclose the kind of post-issuance administrative review that
Congress has authorized here. To be sure, two of the cases make
broad declarations that “[t]he only authority competent to set a
patent aside, or to annul it, or to correct it for any reason
whatever, is vested in the courts of the United States, and not in
the department which issued the pat- ent.” McCormick Harvesting Machine Co. , supra , at 609; accord, American Bell Telephone Co. , 128 U. S., at 364. But
those cases were decided under the Patent Act of 1870. See id ., at 371; McCormick Harvesting Machine Co. , supra , at 611. That version of the Patent Act did not
include any provision for post-issuance administrative review.
Those precedents, then, are best read as a description of the
statutory scheme that existed at that time. They do not resolve
Congress’ authority under the Constitution to establish a different
scheme.[ 3 ]

															C

															Oil States and the dissent contend that inter
partes review violates the “general” principle that “Congress may
not ‘withdraw from judicial cognizance any matter which, from its
nature, is the subject of a suit at the common law, or in equity,
or admiralty.’ ” Stern , 564 U. S., at 484 (quoting Murray’s Lessee , 18 How., at 284). They argue that this is
so because patent validity was often decided in English courts of
law in the 18th century. For example, if a patent owner brought an
infringement action, the defendant could challenge the validity of
the patent as an affirmative defense. See Lemley, Why Do Juries
Decide If Patents Are Valid? 99 Va. L. Rev. 1673, 1682, 1685–1686,
and n. 52 (2013). Or, an individual could challenge the
validity of a patent by filing a writ of scire facias in the
Court of Chancery, which would sit as a law court when adjudicating
the writ. See id., at 1683–1685, and n. 44; Bottomley,
Patent Cases in the Court of Chancery, 1714–58, 35 J. Legal Hist.
27, 36–37, 41–43 (2014).

															But this history does not establish that patent
validity is a matter that, “from its nature,” must be decided by a
court. Stern , supra , at 484 (quoting Murray’s
Lessee , supra , at 284). The aforementioned proceedings
were between private parties. But there was another means of
canceling a patent in 18th-century England, which more closely
resembles inter partes review: a petition to the Privy Council to
vacate a patent. See Lemley, supra, at 1681–1682; Hulme,
Privy Council Law and Practice of Letters Patent for Invention From
the Restoration to 1794, 33 L. Q. Rev. 63 (1917). The Privy Council
was composed of the Crown’s advisers. Lemley, supra, at
1681. From the 17th through the 20th centuries, English patents had
a standard revocation clause that permitted six or more Privy
Counsellors to declare a patent void if they determined the
invention was contrary to law, “prejudicial” or “inconvenient,” not
new, or not invented by the patent owner. See 11 W. Holdsworth, A
History of English Law 426–427, and n. 6 (1938); Davies, The
Early History of the Patent Specification, 50 L. Q. Rev. 86,
102–106 (1934). Individuals could petition the Council to revoke a
patent, and the petition was referred to the Attorney General. The
Attorney General examined the petition, considered affidavits from
the petitioner and patent owner, and heard from counsel. See, e.g., Bull v. Lydall , PC2/81, pp. 180–181 (1706).
Depending on the Attorney General’s conclusion, the Council would
either void the patent or dismiss the petition. See, e.g., Darby v. Betton , PC2/99, pp. 358–359 (1745–1746)
(voiding the patent); Baker v. James , PC2/103, pp.
320–321, 346–347 (1752) (dismissing the petition).

															The Privy Council was a prominent feature of the
English system. It had exclusive authority to revoke patents until
1753, and after that, it had concurrent jurisdiction with the
courts. See Hulme, 33 L. Q. Rev., at 189–191, 193–194. The Privy
Council continued to consider revocation claims and to revoke
patents throughout the 18th century. Its last revocation was in
1779. See id., at 192–193. It considered, but did not act
on, revocation claims in 1782, 1794, and 1810. See ibid. ; Board of Ordinance v. Parr , PC1/3919 (1810).

															The Patent Clause in our Constitution “was
written against the backdrop” of the English system. Graham ,
383 U. S., at 5. Based on the practice of the Privy Council,
it was well understood at the founding that a patent system could
include a practice of granting patents subject to potential
cancellation in the executive proceeding of the Privy Council. The
parties have cited nothing in the text or history of the Patent
Clause or Article III to suggest that the Framers were not aware of
this common practice. Nor is there any reason to think they
excluded this practice during their deliberations. And this Court
has recognized that, “[w]ithin the scope established by the
Constitution, Congress may set out conditions and tests for
patentability.” Id ., at 6. We conclude that inter partes
review is one of those conditions.[ 4 ]

															For similar reasons, we disagree with the
dissent’s assumption that, because courts have traditionally
adjudicated patent validity in this country, courts must forever
continue to do so. See post, at 8–10. Historical practice is
not decisive here because matters governed by the public-rights
doctrine “from their nature” can be resolved in multiple ways:
Congress can “reserve to itself the power to decide,” “delegate
that power to executive officers,” or “commit it to judicial
tribunals.” Ex parte Bakelite Corp. , 279 U. S., at 451.
That Congress chose the courts in the past does not foreclose its
choice of the PTO today.

															D

															Finally, Oil States argues that inter partes
review violates Article III because it shares “every salient
characteristic associated with the exercise of the judicial power.”
Brief for Petitioner 20. Oil States highlights various procedures
used in inter partes review: motion practice before the Board;
discovery, depositions, and cross-examination of witnesses;
introduction of evidence and objections based on the Federal Rules
of Evidence; and an adversarial hearing before the Board. See 35
U. S. C. §316(a); 77 Fed. Reg. 48758, 48761–48763 (2012).
Similarly, Oil States cites PTO regulations that use terms
typically associated with courts—calling the hearing a “trial,” id ., at 48758; the Board members “judges,” id., at
48763; and the Board’s final decision a “judgment,” id., at
48761, 48766–48767.

															But this Court has never adopted a “looks like”
test to determine if an adjudication has improperly occurred
outside of an Article III court. The fact that an agency uses
court-like procedures does not necessarily mean it is exercising
the judicial power. See Freytag , 501 U. S., at 910
(opinion of Scalia, J.). This Court has rejected the notion that a
tribunal exercises Article III judicial power simply because it is
“called a court and its decisions called judgments.” Williams v. United States , 289 U. S. 553, 563
(1933) . Nor does the fact that an administrative adjudication is
final and binding on an individual who acquiesces in the result
necessarily make it an exercise of the judicial power. See, e.g., Murray’s Lessee , 18 How., at 280–281
(permitting the Treasury Department to conduct “final and binding”
audits outside of an Article III court). Al- though inter partes
review includes some of the features of adversarial litigation, it
does not make any binding determination regarding “the liability of
[Greene’s Energy] to [Oil States] under the law as defined.” Crowell , 285 U. S., at 51. It remains a matter
involving public rights, one “between the government and others,
which from [its] nature do[es] not require judicial determination.” Ex parte Bakelite Corp. , 279 U. S., at
451.[ 5 ]

															E

															We emphasize the narrowness of our holding. We
address the constitutionality of inter partes review only. We do
not address whether other patent matters, such as infringement
actions, can be heard in a non-Article III forum. And because the
Patent Act provides for judicial review by the Federal Circuit, see
35 U. S. C. §319, we need not consider whether inter
partes review would be constitutional “without any sort of
intervention by a court at any stage of the proceedings,” Atlas
Roofing Co. v. Occupational Safety and Health Review
Comm’n , 430 U. S. 442, 455 , n. 13 (1977). Moreover,
we address only the precise constitutional challenges that Oil
States raised here. Oil States does not challenge the retroactive
application of inter partes review, even though that procedure was
not in place when its patent issued. Nor has Oil States raised a
due process challenge. Finally, our decision should not be
misconstrued as suggesting that patents are not property for
purposes of the Due Process Clause or the Takings Clause. See, e.g., Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank , 527 U. S. 627, 642 (1999) ; James v. Campbell , 104 U. S. 356, 358 (1882)
.

															IV

															In addition to Article III, Oil States
challenges inter partes review under the Seventh Amendment. The
Seventh Amendment preserves the “right of trial by jury” in “Suits
at common law, where the value in controversy shall exceed twenty
dollars.” This Court’s precedents establish that, when Congress
properly assigns a matter to adjudication in a non-Article III
tribunal, “the Seventh Amendment poses no independent bar to the
adjudication of that action by a nonjury factfinder.” Granfinanciera, S. A. v. Nordberg , 492
U. S. 33, 53 –54 (1989); accord, Atlas Roofing Co. , supra , at 450–455. No party challenges or attempts to
distinguish those precedents. Thus, our rejection of Oil States’
Article III challenge also resolves its Seventh Amendment
challenge. Because inter partes review is a matter that Congress
can properly assign to the PTO, a jury is not necessary in these
proceedings.

															V

															Because inter partes review does not violate
Article III or the Seventh Amendment, we affirm the judgment of the
Court of Appeals.

															It is so ordered. Notes 1 The Director has
delegated his authority to the Patent Trial and Appeal Board. See
37 CFR §42.108(c) (2017). 2 This Court has also
recognized this dynamic for state-issued franchises. For instance,
States often reserve the right to alter or revoke a corporate
charter either “in the act of incorporation or in some general law
of the State which was in operation at the time the charter was
granted.” Pennsylvania College Cases , 13 Wall. 190, 214, and
n. † (1872). That reservation remains effective even after the
corporation comes into existence, and such alterations do not
offend the Contracts Clause of Article I, §10. See Pennsylvania
College Cases , supra , at 212–214; e.g., Miller v. State , 15 Wall. 478, 488–489
(1873). 3 The dissent points to McCormick ’s statement that the Patent Office Commissioner
could not invalidate the patent at issue because it would
“ ‘deprive the applicant of his property without due process
of law, and would be in fact an invasion of the judicial
branch.’ ” Post, at 10 (quoting McCormick Harvesting
Machine Co. v. Aultman , 169 U. S. 606, 612 (1898)
). But that statement followed naturally from the Court’s
determination that, under the Patent Act of 1870, the Commissioner
“was functus officio ” and “had no power to revoke, cancel,
or annul” the patent at issue. 169 U. S., at 611–612. Nor is
it significant that the McCormick Court “equated invention
patents with land patents.” Post, at 10. McCormick itself makes clear that the analogy between the two depended on the
particulars of the Patent Act of 1870. See 169 U. S., at
609–610. Modern invention patents, by contrast, are meaningfully
different from land patents. The land-patent cases invoked by the
dissent involved a “transaction [in which] ‘all authority or
control’ over the lands has passed from ‘the Executive
Department.’ ” Boesche v. Udall , 373 U. S.
472, 477 (1963) (quoting Moore v. Robbins , 96
U. S. 530, 533 (1878) ). Their holdings do not apply when “the
Government continues to possess some measure of control over” the
right in question. Boesche , 373 U. S., at 477; see id., at 477–478 (affirming administrative cancellations of
public-land leases). And that is true of modern invention patents
under the current Patent Act, which gives the PTO continuing
authority to review and potentially cancel patents after they are
issued. See 35 U. S. C. §§261, 311–319. 4 Oil States also suggests
that inter partes review could be an unconstitutional condition
because it conditions the benefit of a patent on accepting the
possibility of inter partes review. Cf. Koontz v. St.
Johns River Water Management Dist. , 570 U. S. 595, 604
(2013) (“[T]he government may not deny a benefit to a person
because he exercises a constitutional right” (internal quotation
marks omitted)). Even assuming a patent is a “benefit” for purposes
of the unconstitutional-conditions doctrine, that doctrine does not
apply here. The doctrine prevents the Government from using
conditions “to produce a result which it could not command
directly.” Perry v. Sindermann , 408 U. S. 593,
597 (1972) (internal quotation marks and alterations omitted). But
inter partes review is consistent with Article III, see Part III–A, supra , and falls within Congress’ Article I authority, see
Part III–C, supra , so it is something Congress can “command
directly,” Perry , supra , at 597. 5 Oil States also points
out that inter partes review “is initiated by private parties and
implicates no waiver of sovereign immunity.” Brief for Petitioner
30–31. But neither of those features takes inter partes review
outside of the public-rights doctrine. That much is clear from United States v. Duell , 172 U. S. 576 (1899) ,
which held that the doctrine covers interference proceedings—a
procedure to “determin[e] which of two claimants is entitled to a
patent”—even though interference proceedings were initiated by
“ ‘private interests compet[ing] for preference’ ” and
did not involve a waiver of sovereign immunity. Id ., at 582,
586 (quoting Butterworth v. United States ex rel.
Hoe , 112 U. S. 50, 59 (1884) ). Also, inter partes review
is not initiated by private parties in the way that a common-law
cause of action is. To be sure, a private party files the petition
for review. 35 U. S. C. §311(a). But the decision to
institute review is made by the Director and committed to his
unreviewable discretion. See Cuozzo Speed Technologies, LLC v. Lee , 579 U. S. ___, ___ (2016) (slip op., at
9). SUPREME COURT OF THE UNITED STATES

															_________________

															No. 16–712

															_________________

															OIL STATES ENERGY SERVICES, LLC, PETITIONER v. GREENE’S ENERGY GROUP, LLC, et al.

															on writ of certiorari to the united states
court of appeals for the federal circuit

															[April 24, 2018]

															Justice Breyer, with whom Justice Ginsburg and
Justice Sotomayor join, concurring.

															I join the Court’s opinion in full. The
conclusion that inter partes review is a matter involving public
rights is sufficient to show that it violates neither Article III
nor the Seventh Amendment. But the Court’s opinion should not be
read to say that matters involving private rights may never be
adjudicated other than by Article III courts, say, sometimes by
agencies. Our precedent is to the contrary. Stern v. Marshall , 564 U. S. 462, 494 (2011) ; Commodity
Futures Trading Comm’n v. Schor , 478 U. S. 833, 853
–856 (1986); see also Stern, supra , at 513 (Breyer, J.,
dissenting) (“The presence of ‘private rights’ does not
automatically determine the outcome of the question but requires a
more ‘searching’ examination of the relevant factors”). SUPREME COURT OF THE UNITED STATES

															_________________

															No. 16–712

															_________________

															OIL STATES ENERGY SERVICES, LLC, PETITIONER v. GREENE’S ENERGY GROUP, LLC, et al.

															on writ of certiorari to the united states
court of appeals for the federal circuit

															[April 24, 2018]

															Justice Gorsuch, with whom The Chief Justice
joins, dissenting.

															After much hard work and no little investment
you devise something you think truly novel. Then you endure the
further cost and effort of applying for a patent, devoting maybe
$30,000 and two years to that process alone. At the end of it all,
the Patent Office agrees your invention is novel and issues a
patent. The patent affords you exclusive rights to the fruits of
your labor for two decades. But what happens if someone later
emerges from the woodwork, arguing that it was all a mistake and
your patent should be canceled? Can a political appointee and his
administrative agents, instead of an independent judge, resolve the
dispute? The Court says yes. Respectfully, I disagree.

															We sometimes take it for granted today that
independent judges will hear our cases and controversies. But it
wasn’t always so. Before the Revolution, colonial judges depended
on the crown for their tenure and salary and often enough their
decisions followed their interests. The problem was so serious that
the founders cited it in their Declaration of Independence (see
¶11). Once free, the framers went to great lengths to guarantee a
degree of judicial independence for future generations that they
themselves had not experienced. Under the Constitution, judges
“hold their Offices during good Behaviour” and their “Compensation
. . . shall not be diminished during the[ir] Continuance
in Office.” Art. III, §1. The framers knew that “a fixed provision”
for judges’ financial support would help secure “the independence
of the judges,” because “a power over a man’s subsistence amounts
to a power over his will.” The Federalist No. 79, p. 472 (C.
Rossiter ed. 1961) (A. Hamilton) (emphasis deleted). They were
convinced, too, that “[p]eriodical appointments, however regulated,
or by whomsoever made, would, in some way or other, be fatal to
[the courts’] necessary independence.” The Federalist No. 78, at
471 (A. Hamilton).

															Today, the government invites us to retreat from
the promise of judicial independence. Until recently, most everyone
considered an issued patent a personal right—no less than a home or
farm—that the federal government could revoke only with the
concurrence of independent judges. But in the statute before us
Congress has tapped an executive agency, the Patent Trial and
Appeal Board, for the job. Supporters say this is a good thing
because the Patent Office issues too many low quality patents;
allowing a subdivision of that office to clean up problems after
the fact, they assure us, promises an efficient solution. And, no
doubt, dispensing with constitutionally prescribed procedures is
often expedient. Whether it is the guarantee of a warrant before a
search, a jury trial before a conviction—or, yes, a judicial
hearing before a property interest is stripped away—the
Constitution’s constraints can slow things down. But economy
supplies no license for ignoring these—often vitally inefficient—
protections. The Constitution “reflects a judgment by the American
people that the benefits of its restrictions on the Government
outweigh the costs,” and it is not our place to replace that
judgment with our own. United States v. Stevens , 559
U. S. 460, 470 (2010) .

															Consider just how efficient the statute before
us is. The Director of the Patent Office is a political appointee
who serves at the pleasure of the President. 35 U. S. C.
§§3(a)(1), (a)(4). He supervises and pays the Board members
responsible for deciding patent disputes. §§1(a), 3(b)(6), 6(a).
The Director is allowed to select which of these members, and how
many of them, will hear any particular patent challenge. See §6(c).
If they (somehow) reach a result he does not like, the Director can
add more members to the panel—including himself—and order the case
reheard. See §§6(a), (c); In re Alappat , 33 F. 3d 1526,
1535 (CA Fed. 1994) (en banc); Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co. Ltd ., 868 F. 3d 1013,
1020 (CA Fed. 2013) (Dyk, J., concurring), cert. pending, No.
17–751. Nor has the Director proven bashful about asserting these
statutory powers to secure the “ ‘policy judgments’ ” he
seeks. Brief for Petitioner 46 (quoting Patent Office Solicitor);
see also Brief for Shire Pharmaceuticals LLC as Amicus
Curiae 22–30.

															No doubt this efficient scheme is well intended.
But can there be any doubt that it also represents a retreat from
the promise of judicial independence? Or that when an independent
Judiciary gives ground to bureaucrats in the adjudication of cases,
the losers will often prove the unpopular and vulnerable? Powerful
interests are capable of amassing armies of lobbyists and lawyers
to influence (and even capture) politically accountable
bureaucracies. But what about everyone else?

															Of course, all this invites the question: how do
we know which cases independent judges must hear? The
Constitution’s original public meaning supplies the key, for the
Constitution cannot secure the people’s liberty any less today than
it did the day it was ratified. The relevant constitutional
provision, Article III, explains that the federal “judicial Power”
is vested in independent judges. As originally understood, the
judicial power extended to “suit[s] at the common law, or in
equity, or admiralty.” Murray’s Lessee v. Hoboken Land
& Improvement Co. , 18 How. 272, 284 (1856). From this and
as we’ve recently explained, it follows that, “[w]hen a suit is
made of the stuff of the traditional actions at common law tried by
the courts at Westminster in 1789 . . . and is brought
within the bounds of federal jurisdiction, the responsibility for
deciding that suit rests with” Article III judges endowed with the
protections for their independence the framers thought so
important. Stern v. Marshall , 564 U. S. 462, 484
(2011) (internal quotation marks omitted). The Court does not
quarrel with this test. See ante , at 12–14. We part ways
only on its application.[ 1 ]

															As I read the historical record presented to us,
only courts could hear patent challenges in England at the time of
the founding. If facts were in dispute, the matter first had to
proceed in the law courts. See, e.g. , Newsham v. Gray , 2 Atk. 286, 26 Eng. Rep. 575 (Ch. 1742). If successful
there, a challenger then had to obtain a writ of scire
facias in the law side of the Court of Chancery. See, e.g. , Pfander, Jurisdiction-Stripping and the Supreme
Court’s Power To Supervise Inferior Tribunals, 78 Texas L. Rev.
1433, 1446, n. 53 (2000); Lemley, Why Do Juries Decide If
Patents Are Valid? 99 Va. L. Rev. 1673, 1686–1687 (2013) (Lemley,
Juries). The last time an executive body (the King’s Privy Council)
invalidated an invention patent on an ordinary application was in
1746, in Darby v. Betton , PC2/99, pp. 358–359;
and the last time the Privy Council even considered doing so
was in 1753, in Baker v. James , PC2/103,
pp. 320–321. After Baker v. James , the Privy
Council “divest[ed] itself of its functions” in ordinary patent
disputes, Hulme, Privy Council Law and Practice of Letters Patent
for Invention from the Restoration to 1794 (Pt. II), 33 L. Q. Rev.
180, 194 (1917), which “thereafter [were] adjudicated solely by the
law courts, as opposed to the [crown’s] prerogative courts,”
Mossoff, Rethinking the Development of Patents: An Intellectual
History, 1550–1800, 52 Hastings L. J. 1255, 1286–1287 (2001)
(Mossoff, Rethinking Patents).[ 2 ]

															This shift to courts paralleled a shift in
thinking. Patents began as little more than feudal favors. Id., at 1261. The crown both issued and revoked them.
Lemley, Juries 1680–1681. And they often permitted the lucky
recipient the exclusive right to do very ordinary things, like
operate a toll bridge or run a tavern. Ibid. But by the 18th
century, inventors were busy in Britain and invention patents came
to be seen in a different light. They came to be viewed not as
endowing accidental and anticompetitive monopolies on the fortunate
few but as a procompetitive means to secure to individuals the
fruits of their labor and ingenuity; encourage others to emulate
them; and promote public access to new technologies that would not
otherwise exist. Mossoff, Rethinking Patents 1288–1289. The
Constitution itself reflects this new thinking, authorizing the
issuance of patents precisely because of their contribution to the
“Progress of Science and useful Arts.” Art. I, §8, cl. 8. “In
essence, there was a change in perception—from viewing a patent as
a contract between the crown and the patentee to viewing it as a
‘social contract’ between the patentee and society.” Waltersheid,
The Early Evolution of the United States Patent Law: Antecedents
(Part 3), 77 J. Pat. & T. Off. Soc. 771, 793 (1995). And as
invention patents came to be seen so differently, it is no surprise
courts came to treat them more solicitously.[ 3 ]

															Unable to dispute that judges alone resolved
virtually all patent challenges by the time of the founding, the
Court points to three English cases that represent the Privy
Council’s dying gasp in this area: Board of Ordnance v. Wilkinson , PC2/123 (1779); Grill [Grice] v. Waters , PC2/127 (1782); and Board of Ordnance v. Parr , PC1/3919 (1810).[ 4 ] Filed in 1779, 1782, and 1810, each involved an effort
to override a patent on munitions during wartime, no doubt in an
effort to increase their supply. But even then appealing to the
Privy Council was seen as a last resort. The 1779 petition (the
last Privy Council revocation ever) came only after the patentee
twice refused instructions to litigate the patent’s validity in a
court of law. Gómez-Arostegui & Bottomley, Privy Council and Scire Facias 1700–1883, p. 6 (Nov. 6, 2017)
https://ssrn.com/abstract=3054989 (citing Board of Ordnance v. Wilkinson , PC2/123 (1779), and PC1/11/150 (1779)). The
Council did not act on the 1782 petition but instead referred it to
the Attorney General where it appears to have been abandoned.
Gómez-Arostegui & Bottomley, Privy Council and Scire
Facias, supra , at 17–18. Meanwhile, in response to the
1810 petition the Attorney General admitted that scire
facias was the “usual manner” of revoking a patent and so
directed the petitioner to proceed at law even as he suggested the
Privy Council might be available in the event of a “very pressing
and imminent” danger to the public. Id., at 20 (citing
PC1/3919 (1810)).

															In the end, these cases do very little to
support the Court’s holding. At most, they suggest that the Privy
Council might have possessed some residual power to revoke patents
to address wartime necessities. Equally, they might serve only as
more unfortunate evidence of the maxim that in time of war, the
laws fall silent.[ 5 ] But
whatever they do, these cases do not come close to proving that
patent disputes were routinely permitted to proceed outside a court
of law.

															Any lingering doubt about English law is
resolved for me by looking to our own. While the Court is correct
that the Constitution’s Patent Clause “ ‘was written against
the backdrop’ ” of English practice, ante, at 14
(quoting Graham v. John Deere Co. of Kansas City , 383
U. S. 1, 5 (1966) ), it’s also true that the Clause sought to reject some of early English practice. Reflecting the
growing sentiment that patents shouldn’t be used for
anticompetitive monopolies over “goods or businesses which had long
before been enjoyed by the public,” the framers wrote the Clause to
protect only procompetitive invention patents that are the product
of hard work and insight and “add to the sum of useful knowledge.” Id ., at 5–6. In light of the Patent Clause’s restrictions on
this score, courts took the view that when the federal government
“grants a patent the grantee is entitled to it as a matter of
right , and does not receive it, as was originally supposed to
be the case in England, as a matter of grace and favor.” James v. Campbell , 104 U. S. 356, 358 (1882)
(emphasis added). As Chief Justice Marshall explained, courts
treated American invention patents as recognizing an “inchoate
property” that exists “from the moment of invention.” Evans v. Jordan , 8 F. Cas. 872, 873 (No. 4,564) (CC Va. 1813).
American patent holders thus were thought to “hol[d] a property in
[their] invention[s] by as good a title as the farmer holds his
farm and flock.” Hovey v. Henry , 12 F. Cas. 603, 604
(No. 6,742) (CC Mass. 1846) (Woodbury, J.). And just as with farm
and flock, it was widely accepted that the government could divest
patent owners of their rights only through proceedings before
independent judges.

															This view held firm for most of our history. In
fact, from the time it established the American patent system in
1790 until about 1980, Congress left the job of invalidating
patents at the federal level to courts alone. The only apparent
exception to this rule cited to us was a 4 year period when foreign patentees had to “work” or commercialize their
patents or risk having them revoked. Hovenkamp, The Emergence of
Classical American Patent Law, 58 Ariz. L. Rev. 263, 283–284
(2016). And the fact that for almost 200 years “earlier Congresses
avoided use of [a] highly attractive”—and surely more
efficient—means for extinguishing patents should serve as good
“reason to believe that the power was thought not to exist” at the
time of the founding. Printz v. United States , 521
U. S. 898, 905 (1997) .

															One more episode still underscores the point.
When the Executive sought to claim the right to cancel a patent in
the 1800s, this Court firmly rebuffed the effort. The Court
explained:

															“It has been settled by repeated decisions
of this court that when a patent has [been issued by] the Patent
Office, it has passed beyond the control and jurisdiction of that
office, and is not subject to be revoked or cancelled by the
President, or any other officer of the Government. It has become
the property of the patentee, and as such is entitled to the same
legal protection as other property.” McCormick Harvesting
Machine Co. v. Aultman , 169 U. S. 606, 608 –609
(1898) (citations omitted).

															As a result, the Court held, “[t]he only
authority competent to set a patent aside, or to annul it, or to
correct it for any reason whatever, is vested in the courts of the
United States, and not in the department which issued the pat-
ent.” Id. , at 609.

															The Court today replies that McCormick sought only to interpret certain statutes then in force, not the
Constitution. Ante , at 11, and n. 3. But this much is
hard to see. Allowing the Executive to withdraw a patent, McCormick said, “would be to deprive the applicant of his
property without due process of law, and would be in fact an
invasion of the judicial branch of the government by the
executive.” 169 U. S., at 612. McCormick also pointed
to “repeated decisions” in similar cases that themselves do not
seem to rest merely on statutory grounds. See id. , at
608–609 (citing United States v. Schurz , 102
U. S. 378 (1880) , and United States v. American
Bell Telephone Co. , 128 U. S. 315 (1888) ). And McCormick equated invention patents with land patents. 169
U. S., at 609 . That is significant because, while the
Executive has always dispensed public lands to homesteaders and
other private persons, it has never been constitutionally empowered
to withdraw land patents from their recipients (or their
successors-in-interest) except through a “judgment of a court.” United States v. Stone , 2 Wall. 525, 535 (1865); Wellness Int’l Network, Ltd. v. Sharif , 575
U. S. ___, ___ (2015) (Thomas, J., dissenting) (slip op., at
11) (“Although Congress could authorize executive agencies to
dispose of public rights in lands—often by means of adjudicating a
claimant’s qualifications for a land grant under a statute—the
United States had to go to the courts if it wished to revoke a
patent” (emphasis deleted)).

															With so much in the relevant history and
precedent against it, the Court invites us to look elsewhere.
Instead of focusing on the revocation of patents, it asks us to
abstract the level of our inquiry and focus on their issuance.
Because the job of issuing invention patents traditionally belonged
to the Executive, the Court proceeds to argue, the job of revoking
them can be left there too. Ante, at 6–10. But that doesn’t
follow. Just because you give a gift doesn’t mean you forever enjoy
the right to reclaim it. And, as we’ve seen, just because the
Executive could issue an invention (or land) patent did not
mean the Executive could revoke it. To reward those who had
proven the social utility of their work (and to induce others to
follow suit), the law long afforded patent holders more protection
than that against the threat of governmental intrusion and
dispossession. The law requires us to honor those historical
rights, not diminish them.

															Still, the Court asks us to look away in yet
another direction. At the founding, the Court notes, the Executive
could sometimes both dispense and revoke public franchises. And
because, it says, invention patents are a species of public
franchises, the Court argues the Executive should be allowed to
dispense and revoke them too. Ante , at 9–10. But labels
aside, by the time of the founding the law treated patents
protected by the Patent Clause quite differently from ordinary
public franchises. Many public franchises amounted to little more
than favors resembling the original royal patents the framers
expressly refused to protect in the Patent Clause. The Court points
to a good example: the state-granted exclusive right to operate a
toll bridge. Ante, at 9. By the founding, courts in this
country (as in England) had come to view anticompetitive monopolies
like that with disfavor, narrowly construing the rights they
conferred. See Proprietors of Charles River Bridge v. Proprietors of Warren Bridge , 11 Pet. 420, 544 (1837). By
contrast, courts routinely applied to invention patents protected
by the Patent Clause the “liberal common sense construction” that
applies to other instruments creating private property rights, like
land deeds. Davis v. Palmer , 7 F. Cas. 154, 158 (No.
3,645) (CC Va. 1827) (Marshall, C. J.); see also Mossoff,
Reevaluating the Patent Privilege 990 (listing more differences in
treatment). As Justice Story explained, invention patents protected
by the Patent Clause were “not to be treated as mere monopolies
odious in the eyes of the law, and therefore not to be favored.” Ames v. Howard , 1 F. Cas. 755, 756 (No. 326) (CC
Mass. 1833). For precisely these reasons and as we’ve seen, the law
traditionally treated pat- ents issued under the Patent Clause very
differently than monopoly franchises when it came to governmental
invasions. Patents alone required independent judges. Nor can
simply invoking a mismatched label obscure that fact. The people’s
historic rights to have independent judges decide their disputes
with the government should not be a “constitutional Maginot Line,
easily circumvented” by such “simpl[e] maneuver[s].” Bank
Markazi v. Peterson , 578 U. S. ___, ___ (2016)
(Roberts, C. J., dissenting) (slip op., at 12).

															Today’s decision may not represent a rout but it
at least signals a retreat from Article III’s guarantees. Ceding to
the political branches ground they wish to take in the name of
efficient government may seem like an act of judicial restraint.
But enforcing Article III isn’t about protecting judicial authority
for its own sake. It’s about ensuring the people today and tomorrow
enjoy no fewer rights against governmental intrusion than those who
came before. And the loss of the right to an independent judge is
never a small thing. It’s for that reason Hamilton warned the
judiciary to take “all possible care . . . to defend
itself against” intrusions by the other branches. The Federalist
No. 78, at 466. It’s for that reason I respectfully dissent. Notes 1 Some of our concurring
colleagues see it differently. See ante , at 1 (Breyer, J.,
concurring). They point to language in Commodity Futures Trading
Comm’n v. Schor , 478 U. S. 833 (1986) , promoting
the notion that the political branches may “depart from the
requirements of Article III” when the benefits outweigh the costs. Id., at 851. Color me skeptical. The very point of our
written Constitution was to prevent the government from
“depart[ing]” from its protections for the people and their liberty
just because someone later happens to think the costs outweigh the
benefits. See United States v. Stevens , 559
U. S. 460, 470 (2010) . 2 See also Brief for H.
Tomás Gómez-Arostegui et al. as Amici Curiae 6–37;
Brief for Alliacense Limited LLC as Amicus Curiae 10–11;
Gómez-Arostegui & Bottomley, Privy Council and Scire Facias
1700–1883, p. 2 (Nov. 6, 2017) (Addendum),
https://ssrn.com/abstract=3054989 (all Internet materials as last
visited Apr. 20, 2018); Observations on the Utility of Patents, and
on the Sentiments of Lord Kenyon Respecting That Subject 23 (2d ed.
1791) (“If persons of the same trade find themselves aggrieved by
Patents taken for any thing already in use, their remedy is at
hand. It is by a writ of Scire Facias ”); Mancius v. Lawton , 10 Johns. 23, 24 (NY Sup. Ct. 1813) (Kent,
C. J.) (noting the “settled English course” that
“[l]etters-patent . . . can only be avoided in chancery,
by a writ of scire facias sued out on the part of the
government, or by some individual prosecuting in its name”
(emphasis deleted)). 3 See also, e.g., Mossoff, Who Cares What Thomas Jefferson Thought About Patents?
Reevaluating the Patent “Privilege” in Historical Context, 92
Cornell L. Rev. 953, 967–968 (2007) (Mossoff, Reevaluating the
Patent Privilege) (“[A]n American patent in the late eighteenth
century was radically different from the royal monopoly privilege
dispensed by Queen Elizabeth or King James in the early seventeenth
century. Patents no longer created, and sheltered from competition,
manufacturing monopolies—they secured the exclusive control of an
inventor over his novel and useful scientific or mechanical
invention” (footnote omitted)); Mossoff, Rethinking Patents
1286–1287; H. Fox, Monopolies and Patents: A Study of the History
and Future of the Patent Monopoly 4 (1947). 4 The 1794 petition the
Court invokes, ante, at 13, involved a Scottish patent. Simpson v. Cunningham , PC2/141, p. 88 (1794).
The English and Scottish patents systems, however, were distinct
and enforced by different regimes. Gómez-Arostegui, Patent and
Copyright Exhaustion in England Circa 1800, pp. 10–16, 37,
49–50 (Feb. 9, 2017), https://ssrn.com/abstract=2905847. Besides,
even in that case the Scottish Lord Advocate “ ‘was of
opinion, that the question should be tried in a court of
law.’ ” Gómez-Arostegui & Bottomley, Addendum, supra , at 23 (citing Petition of William Cunningham,
p. 5, Cunningham v. Simpson , Signet Library
Edinburgh, Session Papers 207:3 (Ct. Sess. Feb. 23,
1796)). 5 After all, the English
statute of monopolies appeared to require the “force and validitie”
of all patents to be determined only by “the Comon Lawes of this
Realme & not otherwise.” 21 Jac. 1, c. 3, §2 (1624). So the
Privy Council cases on which the Court relies may not reflect the
best understanding of the British constitution.

Summary: The Supreme Court upheld the constitutionality of the inter partes review process established by the Leahy-Smith America Invents Act, which allows the Patent and Trademark Office to reconsider and cancel issued patent claims under certain circumstances. The Court found that this process does not violate Article III or the Seventh Amendment of the US Constitution.