Maier & Maier

Arthrex: Federal Circuit Rejects En Banc Rehearing On PTAB Judge Constitutionality

The Federal Circuit has denied the request for rehearing on their Arthrex decision from this past fall. As Maier and Maier’s own Steven Kunin describes here, this rejection sets up a probable grant of certiorari on the issue from the Supreme Court.

“The split among the judges provides a roadmap for a probable Supreme Court grant of a petition for certiorari to resolve the constitutionality of the appointment of PTAB judges to decide AIA trial cases.”

Steve goes on to lay out the dissent’s roadmap for issues in the Supreme Court review:

“Title 5’s protections for government employees are desirable and should not be eliminated without Congressional authorization. The USPTO can fix the problem by use of a statutory authorized panel (i.e., the Director, the Deputy Director, and the Commissioner of Patents). Prospective application of the remedy only is wrong. Retroactive application of Arthrex remedies the harm caused by the violation of the Appointments Clause. The original panel’s conclusion that PTAB judges are principal officers is highly questionable. The APJs are really inferior officers because the Director has substantial power over the PTAB, such as ‘to issue binding policy guidance, institute and reconsider institution, personally choose which APJs sit on AIA trials panels, single-handedly designate or de-designate any final written decision as precedential, and convene a panel of three or more members of his choosing to consider rehearing any Board decision’ and the ‘ability to discipline or remove APJs in a constitutionally significant manner.’”

Until the Supreme court has their final say, the USPTO awaits word on what could force significant changes to their operations.

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