Supreme Court May Find Patent Board Judges Unconstitutionally Appointed But Favor Narrow Fix
During oral argument in the Arthrex case, several justices seemed to agree with the Federal Circuit that PTAB judges should have been appointed by the president. They could opt to get around the problem by enabling the PTO director to review all panel decisions.
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US high court agrees to hear case that could impact hundreds of patent decisions by PTAB; damage caused by continuing uncertainty ‘cannot be overstated,’ New York IP law association says.
Legal experts testify that best option is for all decisions of the Patent Trial and Appeal Board to be reviewed by PTO director; House IP subcommittee wants to restrict ruling that PTAB judges were not constitutionally appointed.
Patent owners can challenge US Patent and Trial and Appeal Board's decisions on grounds the judges were not constitutionally appointed in a narrow number of cases, but they may have difficulty winning a different outcome.