While all eyes have been trained on the confirmation hearings from last week, the
At this point you may be asking, "Why am I reading about a PTAB decision in a Trademark/Copyright Blog?" The answer is that the manner in which the PTO appoints PTAB judges is the same way it appoints TTAB judges, so the reasoning of this decision should apply to the appointments of TTAB ALJs as well. (
Turning back to the Federal Circuit decision, the court determined that APJs are principal officers, who require presidential appointment, rather than "inferior officers," whom presidential appointees have the power to appoint under the
The Federal Circuit then considered whether it could sever aspects of the statutory employment scheme for APJs to remove the constitutional defect. It held that it could, and accordingly eliminated the restrictions on removal placed upon the Director, thus changing the balance in favor of holding APJs to be inferior officers.
In granting certiorari, the
- Whether, for purposes of the Appointments Clause,
U.S. Const. Art. II, § 2, Cl. 2, administrative patent judges of theU.S. Patent and Trademark Office are principal officers who must be appointed by the President with theSenate's advice and consent, or "inferior Officers" whose appointmentCongress has permissibly vested in a department head. - Whether, if administrative patent judges are principal officers, the court of appeals properly cured any Appointments Clause defect in the current statutory scheme prospectively by severing the application of 5 U.S.C. 7513(a) to those judges.
We expect arguments to be scheduled for early 2021.
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