PTAB Constitutionality

Unanimous Support for Legislative Fix

Today, 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 current Federal Circuit solution was effective in curing the Appointments Clause defect, while there was some debate over whether the “fix” would hold, all of today’s witnesses were unanimous in that Congress, could, and should, fix the issue in the short term.
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Orders Stave Off Further Remands….For Now

During last week’s argument in Polaris, appellant argued that the Court’s fix to the PTAB’s Appointments Clause problem was insufficient. According to appellant, “reviewability” is the touchstone of recent Appointments Clause precedent, and that as the proposed fix did not address the lack of reviewability over APJ decisions (because the Federal Circuit could not), it was up to Congress to fix.  During that same hearing, the Court contemplated additional briefing on this topic, which it recently solicited from the parties.

In the meantime, learning from its mistake in its recent Uniloc remand, the Federal Circuit is now allowing time for the government to intervene in parties seeking remand after Arthrex (here) and (here).
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Legislative Intrusion on Article III Courts Considered in Patchek

The Supreme Court provided its most up-to-date guidance on the boundaries of Article III jurisdiction relative to acts of Congress in Patchak v. Zinke, No. 16-498. This decision, issued on February 27th, previews the varying perspectives that will drive the ultimate conclusion in Oil States.

Stating the holding of the Patchak plurality (6-3) most succinctly, and perhaps foreshadowing Oil States, Justice Ginsburg explained: “What Congress grants, it may retract.”


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