For those seeking some PTAB-related CLE this month, don’t miss today’s one-hour briefing, entitled: PTAB 2021 – Targeting a Moving Target. Practising Law Institute is presenting the program today at 1pm (EST).
Register (here)
The program will explore the recent uptick in reexamination filings, the current trends with
On March 1st, the Supreme Court will hear its fifth PTAB related case in United States v. Arthrex Inc. At issue in this latest dispute is whether, for purposes of the Constitution’s appointments clause, administrative patent judges of the U.S. Patent and Trademark Office are principal officers who must be appointed by the president with the Senate’s advice and consent, or “inferior Officers” whose appointment Congress has permissibly vested in a department head. While this may sound like a boring legal debate for administrative law nerds (and it kinda is), there are some real world consequences for us super cool PTAB practitioners.
But, as made clear by a recent change to the Trademark statutes in the Trademark Monetization Act (TMA), it all may end in a fizzle for PTAB practitioners.
Continue Reading Legislative Cure Provided for Potential Arthrex Deficiency
Back in November of 2019 the House Judiciary Committee conducted a hearing entitled “The Patent Trial and Appeal Board and the Appointments Clause: Implications of Recent Court Decisions.” The hearing explored whether or not the Federal Circuit solution pronounced in Arthrex was effective to cure the Appointments Clause defect. While there was some debate over whether the “fix” would hold, all of the witnesses were unanimous in that Congress, could, and should, fix the issue in the short term.
Today, Arthrex was granted cert. I expect that Congress will now turn back to their earlier discussed legislative fix.
Continue Reading Arthrex Cert Likely to Spur Previously Discussed Legislative Fix
On June 25th, the federal government filed a petition (here) for certiorari asking the Supreme Court to review the CAFC’s decisions in both Arthrex, Inc. v. Smith & Nephew, Inc., No. 2018-2140 (Fed. Cir. Oct. 31, 2019) and Polaris Innovations Ltd. v. Kingston Tech. Co., Inc., No. 2018-1831 (Fed. Cir. Jan. 31, 2020). This petition comes as no surprise after the CAFC’s fractured denial of an en banc Arthrex rehearing.
The Court has had occasion to consider Appointments Clause issues several times in recent years, most notably in Lucia v. SEC (2018), and again touching upon the issue last week in Seila Law LLC v. CFPB.
Is there a SCOTUS appetite for the gov’t’s issues?
Continue Reading PTAB Appointments Clause Debate: SCOTUS Preview
This coming Monday, April 13th, the Practising Law Institute (PLI) will host a one-hour briefing at 3PM(EST) entitled: COVID-19 and PTAB Recalibration — Virtual Trials and Evolving Agency Workflows. (Register here). I am pleased to once again team with Rob Sterne of