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Justices, Congress Might Tackle PTAB Constitutionality Next


The full Federal Circuit's decision Monday not to review a ruling that Patent Trial and Appeal Board judges are unconstitutionally appointed may not be the last word on the issue, attorneys say, with U.S. Supreme Court appeals and congressional action potential next steps.

While the appeals court rejected requests for en banc review of an October panel decision known as Arthrex Inc. v. Smith & Nephew , which held the structure of the PTAB violates the appointments clause of the U.S. Constitution, the case has facets that could catch the eye of both the justices and lawmakers.

Monday's order, over dissents by four judges, leaves intact both the panel's holding that the director of the U.S. Patent and Trademark Office lacked sufficient control over the PTAB's judges when they decide inter partes review cases and the remedy it chose to provide that control: stripping away the judges' employment protections to make it easier for the director to fire them.

Jonathan Link, Of Counsel, was called for comment on this interesting matter that is appealing to many. 

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