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Supreme Court Will Decide Whether PTAB Judicial Appointments Are Unconstitutional

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By Laura Temme, Esq. | Last updated on

This week the Supreme Court agreed to review a federal appeals court finding that the process of appointing Patent Trial and Appeal Board (PTAB) judges contained a "constitutional defect." More than 100 patent disputes could be headed for a do-over, depending on how the Supreme Court rules.

Last year the Federal Circuit Court of Appeals, which almost exclusively deals with patent issues, found that the way the Board's Administrative Patent Judges (APJs) were appointed violated the Appointments Clause. The appeals panel proposed a solution that would allow the Board to continue operating as-is. Now the Supreme Court must decide if their remedy was enough to solve the constitutional problem at hand.

Court of Appeals Proposes Small Change

Congress created PTAB in 2011 to review patents issued by the U.S. Patent and Trademark Office. In most cases, the challenged patent ends up canceled. More than 200 judges serve on the Board, but their appointments differ from their colleagues on the U.S. District Courts.

Rather than being nominated by the president and confirmed by the Senate, PTAB judges are appointed by the U.S. Secretary of Commerce. And in November 2019, an appeals panel for the Federal Circuit found that these judges have considerable power and autonomy, making them "principal officers" under the Appointments Clause.

In November 2019, the Federal Circuit concluded that the best way to fix this constitutional problem was to remove the portion of the Patent Act that restricts the removal of judges from PTAB. This would make them "inferior officers," whose appointments would not need to follow the same procedure as other federal judges. However, attorneys for the U.S. government argue this is unnecessary, as PTAB judges are supervised by the director of the Patent Office - who is confirmed by the Senate.

Now It's Up to SCOTUS

The Supreme Court took on a similar case in 2018, finding that administrative law judges for the Securities and Exchange Commission must be appointed by the president, the courts, or the head of a federal agency.

Some fear a decision broader than the solution proposed by the court of appeals will open the floodgates for hundreds of people looking to get their patent applications reinstated. But, this seems unlikely given that the Federal Circuit's proposal was based on Supreme Court guidance.

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