A “catch 22” is defined as a “dilemma or difficult circumstance from which there is no escape because of mutually conflicting or dependent conditions.” (As in if a pilot claims he is too mentally ill to fly missions, he has demonstrated his own sanity in making the request. This is from the novel Catch 22 by Joseph Heller.)
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.
Guest post from Edward Sandor. Warren Woessner also posted a blog about the Updated Guidance on October 21.
On October 17, 2019, the USPTO published an October 2019 Patent Eligibility Guidance Update to the earlier 2019 Revised Patent Subject Matter Eligibility Guidance published in January, 2019.
From the practitioner standpoint, the message continues to be encouraging.
On Oct. 17th, the PTO published Guidelines intended to supplement the Jan. 2019 Subject Matter Eligibility Guidelines (“2019 PEG”). The Guidelines and associated Examples are extensive. Only two of the Examples (43 and 44) are concerned with the life sciences. Example 43 is a method of medical treatment claim and 44 is a claim to a packaged natural product, that contains the natural product in a self-injectable patch to control diabetes, or combines it with another natural product.