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Posts Tagged: "constitutional law"

‘Now We Know’ – Lessons in Preserving Constitutional Error Before the USPTO

In 2019, the issue of preservation of constitutional arguments before the USPTO, which had basically been dormant for a decade, was abruptly and dramatically revived. Now the subject of whether constitutional arguments generally ought to be preserved before the agency is settled, at least for the time being. Constitutional arguments should ordinarily be preserved before the agency; otherwise those constitutional arguments might be summarily deemed forfeited on appeal.

Constitutional Law Scholars Weigh in on Arthrex

The Arthrex decision caused considerable confusion and excitement among the patent bar last week, partly because the issue decided by the Federal Circuit was a constitutional, and not a patent one. While we await next steps from the parties and the USPTO, IPWatchdog spoke to several constitutional law experts to get their take on the significance of the decision and the likelihood that the Supreme Court would be interested in the issue if appealed. All agreed that the Federal Circuit’s reasoning was correct, though one thought the Court’s approach to deciding that administrative patent judges (APJs) are inferior officers was slightly “unusual” in its focus strictly on the issue of “supervision” over other factors that the Supreme Court has found to be relevant to the distinction between inferior and principal officers. IPWatchdog posed three questions to the experts based on some of the issues that have been raised since Arthrex.