An Avalanche of FWD Do-Overs Imminent?

Back in June I explained the latest constitutional challenge to AIA Trial Proceedings under the Appointments Clause of the U.S. Constitution.  In a nutshell, the argument is that PTAB Administrative Patent Judges (APJ) are “superior officers” delivering the final word of the government in PTAB trial proceedings.  And that, as such, APJ actions are unconstitutional since they are not political appointees confirmed by the U.S. Senate — as the Appointments Clause requires.

That argument found its way to the Federal Circuit earlier this month in Arthrex Inc. v. Smith & Nephew, Inc.  At oral argument, the Court probed the Director’s ability to remove APJs, and seemed concerned that this deficiency was enough to violate the Appointments Clause.  An Order issued last week for additional briefing appears to reinforce the expectation that the Court will find the APJs functioning in violation of the Appointments Clause.


Continue Reading