Appointments Clause Argument Forfeited if Not Raised in Opening Brief
With the ink barely dry on Thursday’s Federal Circuit ruling that the Administrative Patent Judges (APJs) of the Patent Trial & Appeal Board (PTAB) were unconstitutionally appointed, Appellant Notices of Supplemental Authority began to roll into the Court Friday morning. For Appellants that had appropriately raised the issue in their opening brief to the Court, some were remanded to the PTAB (Uniloc 2017 LLC. v. Facebook Inc.). Other such appeals were allowed to proceed to oral argument based, in part, on DOJ involvement. (such as today’s argument in Polaris Innovations Limited v Kingston Technology Co. Inc.)
For Appellants hoping to take advantage of the Appointments Clause development who had not briefed it, the Court found such arguments forfeited.
As the Court explained in Arthrex, Appointments Clause challenges are not jurisdictional, and therefore, such challenges can be forfeited if not seasonably raised. In a precedential order in Customedia Technologies v. Dish Network Corp., the Court explained (here):
We conclude that Customedia has forfeited its Appointments Clause challenges. “Our law is well established that arguments not raised in the opening brief are waived.” SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1319 (Fed. Cir. 2006) (citing Cross Med. Prods., Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1320–21 n.3 (Fed. Cir. 2005)). That rule applies with equal force to Appointments Clause challenges. See, e.g., Island Creek Coal Co. v. Wilkerson, 910 F.3d 254, 256 (6th Cir. 2018); Turner Bros., Inc. v. Conley, 757 F. App’x 697, 699–700 (10th Cir. 2018); see also Arthrex, slip op. at 29 (emphasizing that Appointments Clause challenges are not jurisdictional and that the court was granting relief only when the party had properly raised the challenge on appeal). Customedia did not raise any semblance of an Appointments Clause challenge in its opening briefs or raise this challenge in a motion filed prior to its opening briefs. Consequently, we must treat that argument as forfeited in these appeals.
This precedential order males clear that the Court will not be clearing its docket of PTAB appeals. Rather, those few appeals that seasonably raised the issue before Arthrex will benefit, and any cases with FWDs that issued prior to 10/31 and that have not yet filed opening briefs (assuming such opening briefs add the Appointments Clause argument).