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.