In Arthrex, Inc. v. Smith & Nephew, Inc., Appeal No. 2018-2140 (Fed. Cir., Oct. 31, 2019), a three Judge Fed. Cir. panel of Moore, Reyna and Chen took a deep dive into the appointments clause of the constitution and held that PTAB judges (“ APJ’s”) are unconstitutionally appointed “principal officers” of the U.S., who cannot validly be appointed by the Director of the Commerce Department, in consultation with the PTO Director. While the PTAB is mostly made up of APJ’s, the Director, the Deputy Director, and the Commissioners of Patents and of Trademarks are also considered to be members of the Board.
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This blog, Patents4Life, does not contain legal advice and is for informational purposes only. Its publication does not create an attorney-client relationship nor is it a solicitation for business. This is the personal blog of Warren Woessner and does not reflect the views of Schwegman Lundberg & Woessner, or any of its attorneys or staff. To the best of his ability, the Author provides current and accurate information at the time of each post, however, readers should check for current information and accuracy.