Constitutionality of Administrative Patent Judges Calls PTAB Decisions into Question

    Private: Amanda Doran

    Earlier this year, the U.S Court of Appeals of the Federal Circuit (CAFC) ruled in Arthrex Inc. v. Smith & Nephew Inc. that the current system to appoint Administrative Patent Judges (APJs) violated the Appointment Clause of the U.S. Constitution.

    On November 9, 2019, CAFC ordered the parties in Polaris Innovations Lt. v. Kingston Technology Company, Inc. to provide supplemental briefings related to the constitutionality of APJs. A final decision regarding whether the system of appointing APJs is constitutional could result in the review of all past Patent Trial and Appeal Board (PTAB) decisions.

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