On October 30th, the Federal Circuit in Arthrex held that the Administrative Patent Judges (APJs) of the Patent Trial and Appeal Board (PTAB) operated in violation of the Appointments Clause of the Constitution. To correct this defect, the Court severed Title 5 employment protections for APJs, thus relegating the APJs to “at will” employment status. Subsequently, on November 4th, in the Polaris case, patent owner argued that the Court’s remedy did not cure the defect as the Director still had limited reviewability of APJ decisions. Since that time, some judges of the Federal Circuit have expressed disagreement with Arthrex, supplemental briefing has been ordered in Polaris, and the U.S. Government has intervened in impacted appeals to stay remands pending their en banc petition to the Court.
Please join Scott A. McKeown and Matthew J. Rizzolo of Ropes & Gray LLP and J.C. Rozendaal and Robert Greene Sterne of Sterne, Kessler, Goldstein & Fox, P.L.L.C. as they:
- Examine the evolving developments to assess potential stakeholder impact
- Assess the potential impact of these decisions on PTAB operations
- Explore legislative interest/efforts to address the development
- Discuss likely outcomes and stakeholder preparation strategies
All PTAB stakeholders will find this briefing timely and helpful.