Federal Circuit Says Patent Trial and Appeal Board Judges Are Not Constitutionally Appointed
HumanScumHat RetweetedEven tho Im on hiatus from practicing law Id like trademark twitter to urgently consider the Fed Cir ruling last night that flat out says USPTO judges arent constitutionally appointee. Hey guysthis is a HUGE ruling. @TimberlakeLaw @TTABlog @tm4smallbiz @design_law @jottaviani
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@likely2confuse @INTA @markpmckenna @marklemley #trademarktwitter
Decision not limited to patent board, right? Applies to TTAB too. 👀‼️‼️
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Arthrex, Inc. v. Smith & Nephew, Inc., No. 18-1584 (Fed. Cir. 2019)
🚨USPTO judges not constitutionally appointed says Fed. Circuit. 🚨
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If USPTO judges arent constitutionally appointed, then no decisions can be issued as of last night. If they are merely at will employees (blowing up nearly a century of judicial appointments) they can be fired for any reason and replaced w/ unqualified political hacks.👀
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This is how Trumps @TheJusticeDept attacks the judiciary. We are in #KangarooCourt territory now. Attacking the independence and VALIDITY of the USPTO judges strikes at the heart of PTOs ability to objectively make wide ranging decisions based on reason and law. @Popehat 👀
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Can anyone point to a single USPTO judicial decision thats been released today since this ruling last night by Fed. Circuit? @jottaviani @TimberlakeLaw @design_law @markpmckenna @TTABlog @likely2confuse @Popehat @marklemley
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No @Law360 its not easily remedied. Assuming you dont consider changing PTAB and TTAB appointments to at will so they can be fired for whatever reason and replaced by Trumpsters with economic motives to affirm patents and marks they like, invalidate ones they dont. WAKE UP
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Oh nothing. Just the US DOJ intervening in cases in order to invalidate appointments of all administrative law judges as unconstitutional so dear leader Donald Trump can appoint his friends to US administrative law courts.
Fed Circuit: how about an en banc rehearing on this?👀
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By IPWatchdog
October 31, 2019
These factors, considered together, confirm that APJs are principal officers under Title 35 as currently constituted. As such, they must be appointed by the President and confirmed by the Senate; because they are not, the current structure of the Board violates the Appointments Clause. Federal Circuit opinion
The U.S. Court of Appeals for the Federal Circuit, in an opinion authored by Judge Moore, has ruled that the current statutory scheme for appointing Administrative Patent Judges (APJs) to the Patent Trial and Appeal Board (PTAB) violates the Appointments Clause of the U.S. Constitution as it makes APJs principal officers. APJs are presently appointed by the Secretary of Commerce, but principal officers must be appointed by the U.S. President under the Constitution, Article II, § 2, cl. 2. To remedy this, the statutory removal provisions that are presently applied to APJs must be severed so that the Secretary of Commerce has the power to remove APJs without cause, said the Court.
Dismissing the governments and appellees arguments that the Appointments Clause issue had been waived by the appellant, Arthrex, Inc., because Arthrex had not raised the issue with the PTAB, the Federal Circuit said that this is an issue of exceptional importance, and we conclude it is an appropriate use of our discretion to decide the issue over a challenge of waiver.
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mike November 1, 2019 12:37 am
The narrowest remedy would be to sever the current restriction on removal of APJs from the statute, which would render them inferior officers.
This is where the Federal Circuit is WRONG. Severing the current restriction on removal of APJs from the statute DOES NOT REMEDY THEIR UNCONSTITUTIONAL APPOINTMENT IN THE FIRST INSTANCE!!!
These current APJs were NOT appointed by the President, nor vetted nor confirmed by the Senate. So, if this is the only remedy that will be provided with regard to the violation of the APPOINTMENTS Clause, then Director Iancu should act within his authority and remove EVERY ONE of these APJs IMMEDIATELY, as the Federal Circuit admits that NONE OF THEM were constitutionally appointed in the first instance.
Director Iancu, you now have the authority to remove all of these unconstitutionally appointed APJs immediately and to appoint your own.
www.cafc.uscourts.gov
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Jurisdiction
The Federal Circuit is unique among the courts of appeals as it is the only court that has its jurisdiction based wholly upon subject matter rather than geographic location. The Federal Circuit is an appellate court with jurisdiction generally given in 28 U.S.C. § 1295. The court hears certain appeals from all of the United States District Courts, appeals from certain administrative agencies, and appeals arising under certain statutes.
Education
Massachusetts Institute of Technology (B.S., M.S.)
Georgetown University Law Center (J.D.)
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Education and legal career
From 1988 to 1992, Moore was employed in electrical engineering with the Naval Surface Warfare Center. Moore received a Bachelor of Science degree in Electrical Engineering in 1990 and a Master of Science in 1991, from the Massachusetts Institute of Technology.
She received her Juris Doctor cum laude from the Georgetown University Law Center in 1994. She worked in private practice as an associate with the law firm of Kirkland & Ellis in Los Angeles, California from 1994 to 1995, and then clerked for United States Circuit Judge Glenn Leroy Archer, Jr. from 1995 to 1997.
Moore taught at the Chicago-Kent College of Law from 1997 to 1999 and at the University of Maryland School of Law from 1999 to 2000. She subsequently taught at the George Mason University School of Law first as an associate professor from 2000 to 2004, and then as a professor of law from 2004 until her appointment. Prior to her appointment, Moore also served as a mediator for the Federal Circuit Appellate Mediation Pilot Program. She also served as a lecturer for the BarBri Patent Bar Review, a review program for the United States Patent and Trademark Office (USPTO) registration examination.
Backseat Driver
(4,392 posts)If those on this panel are now merely "at will" legal-expertise employees of "the Federal government (not judicial branch since not appointed by POTUS/confirmed by Senate) appointees to Judicial Branch, would they then fall under Executive Branch? If so, may they then complain to US Merit Systems Protection Systems as falling under different status and/or branch of government than previously as appointed?
Complaints (to US-MSPS) may be heard from persons defamed by a whistleblower under the Whistleblowers Act process? This whistleblower has admitted he was not a direct principal, though direct principals have corroborated the complaint of said whistleblower. This board (MSPS) currently has no quorum for decisions according to Wiki) - Would a transcript of POTUS' calls to foreign leaders be considered "intellectual property" (Federal Circuit jurisdiction of copywrite) and at what point in the process of software completion by human listeners?
I can see this being a huge shift insofar as decisions made by this judicial panel as in the case in which it was presented (Arthrex vs.the other corporation) since the merger of jurisdictional scope in 1982, but what besides political stacking of judges might this involve currently or in the short-term for DontheCon, as if that were not enough in causing chaos in goverment. ???
Someone tell me...Not even sure of what questions to ask here but seems important, so I did recommend.