Court Says Methods for Appointing PTAB Judges Are Unconstitutional

November 8, 2019

In a case that involves two medical device companies, the Federal Circuit Court of Appeals has ruled that the method for appointing Patent Trial and Appeal Board’s administrative patent judges is unconstitutional.

Smith & Nephew petitioned PTAB to conduct an inter partes review of Arthrex’s patent for a knotless suture securing assembly. After a briefing and trial, PTAB invalidated the patent.

On appeal, Arthrex argued that the appointment of the board’s Administrative Patent Judges by the Secretary of Commerce violates the Appointments Clause of the Constitution, so their case wasn’t heard by constitutionally-appointed judges.

The appeals court agreed, finding that the PTAB director does not have enough oversight over the judges. The three-judge panel vacated the board’s decision and remanded the case to a new panel of patent judges.