Justice Dept. Defends Challenge to APJ Appointments

The latest constitutional challenge to the Patent Trial & Appeal Board (PTAB) involves the Appointments Clause.

The Appointments Clause of the U.S. Constitution has been interpreted to require that only “Principal Officers” of the United States — appointed by the President and confirmed by the Senate — can exercise “significant authority” pursuant to the laws of the United States. What is significant authority, you ask?  In a nutshell, the final word of the U.S. government.

So the debate in the now pending petition for certiorari in Polaris Innovations Ltd. v. Kingston Tech. (and in other petitions for cert raising the same issue) has become whether the APJs of the PTAB are superior officers rendering the final word of the government in PTAB trial proceedings, or whether they are instead functioning as “inferior officers” subject to the control of the Director (a political appointee, confirmed by the Senate).

The Government weighed in earlier this week on these petitions for certiorari.
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