Welcome to DU!
The truly grassroots left-of-center political community where regular people, not algorithms, drive the discussions and set the standards.
Join the community:
Create a free account
Support DU (and get rid of ads!):
Become a Star Member
Latest Breaking News
General Discussion
The DU Lounge
All Forums
Issue Forums
Culture Forums
Alliance Forums
Region Forums
Support Forums
Help & Search
Federal Circuit Says Patent Trial and Appeal Board Judges Are Not Constitutionally Appointed
HumanScumHat RetweetedEven tho I’m on hiatus from practicing law I’d like trademark twitter to urgently consider the Fed Cir ruling last night that flat out says USPTO judges aren’t constitutionally appointee. Hey guys—this is a HUGE ruling. @TimberlakeLaw @TTABlog @tm4smallbiz @design_law @jottaviani
Link to tweet
@likely2confuse @INTA @markpmckenna @marklemley #trademarktwitter
Decision not limited to patent board, right? Applies to TTAB too. 👀‼️‼️
Link to tweet
Arthrex, Inc. v. Smith & Nephew, Inc., No. 18-1584 (Fed. Cir. 2019)
🚨USPTO judges not constitutionally appointed says Fed. Circuit. 🚨
Link to tweet
If USPTO judges aren’t constitutionally appointed, then no decisions can be issued as of last night. If they are merely “at will” employees (blowing up nearly a century of judicial appointments) they can be fired for any reason and replaced w/ unqualified political hacks.👀
Link to tweet
This is how Trump’s @TheJusticeDept attacks the judiciary. We are in #KangarooCourt territory now. Attacking the independence and VALIDITY of the USPTO judges strikes at the heart of PTO’s ability to objectively make wide ranging decisions based on reason and law. @Popehat 👀
Link to tweet
Can anyone point to a single USPTO judicial decision that’s been released today since this ruling last night by Fed. Circuit? @jottaviani @TimberlakeLaw @design_law @markpmckenna @TTABlog @likely2confuse @Popehat @marklemley
Link to tweet
No @Law360 it’s not “easily remedied.” Assuming you don’t consider changing PTAB and TTAB appointments to “at will” so they can be fired for whatever reason and replaced by Trumpsters with economic motives to affirm patents and marks they like, invalidate ones they don’t. WAKE UP
Link to tweet
Oh nothing. Just the US DOJ intervening in cases in order to invalidate appointments of all administrative law judges as “unconstitutional” so dear leader Donald Trump can appoint his friends to US administrative law courts.
Fed Circuit: how about an en banc rehearing on this?👀
Link to tweet
Federal Circuit Says PTAB Judges Are Not Constitutionally Appointed
By IPWatchdog
October 31, 2019
“These factors, considered together, confirm that APJs are principal officers under Title 35 as currently constituted. As such, they must be appointed by the President and confirmed by the Senate; because they are not, the current structure of the Board violates the Appointments Clause.” – Federal Circuit opinion
The U.S. Court of Appeals for the Federal Circuit, in an opinion authored by Judge Moore, has 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 as it makes APJs principal officers. APJs are presently appointed by the Secretary of Commerce, but principal officers must be appointed by the U.S. President under the Constitution, Article II, § 2, cl. 2. To remedy this, the statutory removal provisions that are presently applied to APJs must be severed so that the Secretary of Commerce has the power to remove APJs without cause, said the Court.
Dismissing the government’s and appellees’ arguments that the Appointments Clause issue had been waived by the appellant, Arthrex, Inc., because Arthrex had not raised the issue with the PTAB, the Federal Circuit said that “this is an issue of exceptional importance, and we conclude it is an appropriate use of our discretion to decide the issue over a challenge of waiver.”
....
By IPWatchdog
October 31, 2019
“These factors, considered together, confirm that APJs are principal officers under Title 35 as currently constituted. As such, they must be appointed by the President and confirmed by the Senate; because they are not, the current structure of the Board violates the Appointments Clause.” – Federal Circuit opinion
The U.S. Court of Appeals for the Federal Circuit, in an opinion authored by Judge Moore, has 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 as it makes APJs principal officers. APJs are presently appointed by the Secretary of Commerce, but principal officers must be appointed by the U.S. President under the Constitution, Article II, § 2, cl. 2. To remedy this, the statutory removal provisions that are presently applied to APJs must be severed so that the Secretary of Commerce has the power to remove APJs without cause, said the Court.
Dismissing the government’s and appellees’ arguments that the Appointments Clause issue had been waived by the appellant, Arthrex, Inc., because Arthrex had not raised the issue with the PTAB, the Federal Circuit said that “this is an issue of exceptional importance, and we conclude it is an appropriate use of our discretion to decide the issue over a challenge of waiver.”
....
There are currently 1 Comment comments. Join the discussion.
mike November 1, 2019 12:37 am
“The narrowest remedy would be to sever the current restriction on removal of APJs from the statute, which would render them inferior officers.”
This is where the Federal Circuit is WRONG. Severing the current restriction on removal of APJs from the statute DOES NOT REMEDY THEIR UNCONSTITUTIONAL APPOINTMENT IN THE FIRST INSTANCE!!!
These current APJs were NOT appointed by the President, nor vetted nor confirmed by the Senate. So, if this is the only remedy that will be provided with regard to the violation of the APPOINTMENTS Clause, then Director Iancu should act within his authority and remove EVERY ONE of these APJs IMMEDIATELY, as the Federal Circuit admits that NONE OF THEM were constitutionally appointed in the first instance.
Director Iancu, you now have the authority to remove all of these unconstitutionally appointed APJs immediately and to appoint your own.
United States Court of Appeals for the Federal Circuit
www.cafc.uscourts.gov
....
Jurisdiction
The Federal Circuit is unique among the courts of appeals as it is the only court that has its jurisdiction based wholly upon subject matter rather than geographic location. The Federal Circuit is an appellate court with jurisdiction generally given in 28 U.S.C. § 1295. The court hears certain appeals from all of the United States District Courts, appeals from certain administrative agencies, and appeals arising under certain statutes.
www.cafc.uscourts.gov
....
Jurisdiction
The Federal Circuit is unique among the courts of appeals as it is the only court that has its jurisdiction based wholly upon subject matter rather than geographic location. The Federal Circuit is an appellate court with jurisdiction generally given in 28 U.S.C. § 1295. The court hears certain appeals from all of the United States District Courts, appeals from certain administrative agencies, and appeals arising under certain statutes.
Kimberly Ann Moore
Education
Massachusetts Institute of Technology (B.S., M.S.)
Georgetown University Law Center (J.D.)
....
Education and legal career
From 1988 to 1992, Moore was employed in electrical engineering with the Naval Surface Warfare Center. Moore received a Bachelor of Science degree in Electrical Engineering in 1990 and a Master of Science in 1991, from the Massachusetts Institute of Technology.
She received her Juris Doctor cum laude from the Georgetown University Law Center in 1994. She worked in private practice as an associate with the law firm of Kirkland & Ellis in Los Angeles, California from 1994 to 1995, and then clerked for United States Circuit Judge Glenn Leroy Archer, Jr. from 1995 to 1997.
Moore taught at the Chicago-Kent College of Law from 1997 to 1999 and at the University of Maryland School of Law from 1999 to 2000. She subsequently taught at the George Mason University School of Law first as an associate professor from 2000 to 2004, and then as a professor of law from 2004 until her appointment. Prior to her appointment, Moore also served as a mediator for the Federal Circuit Appellate Mediation Pilot Program. She also served as a lecturer for the BarBri Patent Bar Review, a review program for the United States Patent and Trademark Office (USPTO) registration examination.
Education
Massachusetts Institute of Technology (B.S., M.S.)
Georgetown University Law Center (J.D.)
....
Education and legal career
From 1988 to 1992, Moore was employed in electrical engineering with the Naval Surface Warfare Center. Moore received a Bachelor of Science degree in Electrical Engineering in 1990 and a Master of Science in 1991, from the Massachusetts Institute of Technology.
She received her Juris Doctor cum laude from the Georgetown University Law Center in 1994. She worked in private practice as an associate with the law firm of Kirkland & Ellis in Los Angeles, California from 1994 to 1995, and then clerked for United States Circuit Judge Glenn Leroy Archer, Jr. from 1995 to 1997.
Moore taught at the Chicago-Kent College of Law from 1997 to 1999 and at the University of Maryland School of Law from 1999 to 2000. She subsequently taught at the George Mason University School of Law first as an associate professor from 2000 to 2004, and then as a professor of law from 2004 until her appointment. Prior to her appointment, Moore also served as a mediator for the Federal Circuit Appellate Mediation Pilot Program. She also served as a lecturer for the BarBri Patent Bar Review, a review program for the United States Patent and Trademark Office (USPTO) registration examination.
2 replies
= new reply since forum marked as read
= new reply since forum marked as read
