appointments clause PTAB

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.
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Well, that Escalated Quickly…

On the heels of the supplemental briefing discussed yesterday, the Federal Circuit has already issued its decision in  Arthrex Inc. v. Smith & Nephew, Inc.  The Court has vacated and remanded the decision, ordering  a new hearing before a panel of different APJs, prospectively remedying the issue by severing the problematic aspect of 35 U.S.C. § 3(c).

So, what does this mean for pending appeals?
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November Webinar to Focus on Appellate Hot Topics

The November edition of the PatentsPostGrant.com webinar series will be held Monday, November 4th@ 2-3PM (EST). The November program will focus on emerging appellate issues expected to drive PTAB practice in the months ahead.

The webinar is entitled: PTAB Reset 2020: Appointments Clause Turmoil & Appellate Docket

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.


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