Oh Boy, Administrative Patent Judges are Principal Officers, says CAFC
by: Luke Barbin, CEO
We are closely following the CAFC’s landmark decision from yesterday, and the industry reactions are rolling in. This adds one more wrinkle to constitutionality questions of the AIA because the CAFC ruled that the current statutory scheme for appointing Administrative Patent Judges (APJs) to the Patent Trial and Appeal Board (PTAB) violates the Appointments Clause of the U.S. Constitution…uh oh. Our friends at IPWatchdog published a great summary of the decision and its implications, and the commenters are already going back and forth over it. In short, the CAFC held:
1. APJs are Officers, rather than employees, because they “exercise significant authority”
2. APJs are “Principal Officers” (not “Inferior Officers) because “the control and supervision of the APJs is not sufficient to render them inferior officers”.
The Court held that the narrowest remedy would be to sever the current restriction on removal of APJs from the statute, which would render them “Inferior Officers”. Since heretofore, the APJs were not appointed by the President and not vetted or confirmed by Senate, we think this ruling raises several immediate questions like, for example:
1. What happens to the over 500 IPR Final Written Decisions per year that have been issued by unconstitutionally appointed APJs? Should the decisions be vacated and remanded to a new panel of APJs?
2. What happens to the APJs? Should Director Iancu remove every one of the APJs immediately and begin a constitutional appointment process?
OH BOY…
How can we help?
Given this sudden cataclysmic event in our industry and the uncertainty of ripple effects ahead, if you are a party who finds itself potentially on the verge of re-litigating an IPR at the PTAB and you want another bite at finding or uncovering prior art, we will provide you with a full Limestone Prior Art Report at half price ($249 instead of $499) between now and December 31st.
If you’d like to engage our teams in the hunt, we’ll give you a 20% discount if you commission a full invalidity investigation from our team between now and December 31st on a patent that’s already appeared before the PTAB.