Federal Circuit Says Appointment of PTAB Judges Unconstitutional, PTAB Litigation Blog

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Last Thursday, the Federal Circuit found the appointments of Patent Trial and Appeal judges unconstitutional, in part because the judges do not receive sufficient oversight from the Director of the United States Patent and Trademark Office (USPTO).  Arthrex, Inc. v. Smith & Nephew, Inc., et al., No. 18-2140 (Fed. Cir. 2019).  The court cured the violation by severing a statutory restriction on the removal of PTAB judges, rendering the judges “inferior officers” that no longer require presidential appointment.  The court then vacated and remanded the Board’s decision, requiring a new panel of PTAB judges to hear the IPR on remand. 

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