Officers of the United States Shall be Appointed by the President

Hearings tomorrow in the House of Representatives on PTAB Appointments Clause Issues arising from the Federal Circuit’s recent decision in Arthrex, Inc. v. Smith & Nephew, Inc., No. 2018-2140 (Fed. Cir. Oct. 31, 2019).  We have a law professor heavy panel with Professors John Duffy, Arti Rai, and John Whealan along with Bob Armitage (who tends to speak like a professor).

The basic framework is that the Constitution requires all “Officers of the United States” to be nominated by the President with “Consent of the Senate.”  U.S. Const. Article II, Section 2. The so-called appointments clause has a caveat that “inferior Officers” may be appointed by Courts or Heads of Departments if Congress so allows.  Currently PTAB Judges (Administrative Patent Judges) are treated as inferior officers by statute — appointed by the Secretary of Commerce.  However, the increased responsibility of AIA Trials has pushed their role into the territory of Principal Officers that must be appointed by the President.


 

50 thoughts on “Officers of the United States Shall be Appointed by the President

  1. 10

    Better hurry up, maximalists, before your diseased party is buried in 2020!

    Smell the fear.

    LOLOLOL

    1. 10.1

      Your One-Bucketing is noted.

  2. 9

    One wonders, if a million dollars buys an ambassadorship to the EU these days, how much it would cost to be appointed to the PTAB. $200,000? How much do they make?

  3. 8

    Where in the Patent Act does a patentee agree to a waiver of a trial by jury? Nowhere. Why, then, should an unconstitutionally appointed APJ trump a patentee’s right to access a jury?

    1. 8.1

      This is silly. The PTAB does not “trump” a patentee’s “access” to a jury, any more than the examiner “trumps” a patentee’s “access” to a jury. The patentee who sues to enforce a patent is entitled to a jury trial, but before the patentee can do that, the patentee must first obtain a valid claim from the PTO, and hold on to that claim all the way to trial.

      It has always been the case that the PTO could refuse an inventor’s claim in the first instance, or even revoke it once granted (interference). It is true that this failure to show up at the court house with a valid claim in hand does rather preclude the possibility of a jury trial (you cannot sue without a claim to enforce), but this is not “trumping” the jury. It is merely a precondition of exercising one’s jury trial right that one must have a legally cognizable right to bring before the jury.

      1. 8.1.1

        How do you explain a jury verdict of infringement, a jury verdict of no invalidity, an affirmance by the Fed Cir on both findings, and then a subsequent invalidation by the PTAB? That is a placement of the PTAB above an Article III court and a jury. It is wrong.

        1. 8.1.1.1

          Better art and arguments?

          Man, but the maximalists are a pack of f—-king ret@-rds.

          1. 8.1.1.1.1

            Your first sentence is actually an intelligent and cogent response, Malcolm.

            If you could have controlled your feelings and omitted the unnecessary (and far too broad in a One Bucket sense) mindless ad hominem, you may have had a decent post.

      2. 8.1.2

        This ruling is incorrect and should be overturned.

        The patent examiners issue and sometimes deny patent claims are not constitutionally appointed. This is just an extension of the patent issuing process. All of the PTAB rulings, and examiner decisions, can be reviewed by a Federal Court which is constitutionally appointed. The PTAB and the the PTO are not the final word in these decisions, the Federal Courts are.

        1. 8.1.2.1

          Apple,

          You’ve ventured this view previously, and you are again wrong in that examiners are not judges.

          Examination is simply different, and need not have the appointment power invoked.

          That you feel otherwise is recognized. But your feelings are simply not how things are.

          1. 8.1.2.1.1

            Anon,

            I appreciate your comment, but stating an Examiner is simply different is not an argument. Examiners are Judges in the same sense as PTAB Judges are. Both make rulings on if claims are patentable. If the Examiner just rubber stamped the petitioners claims then I would agree with you, but that is not the case. If you are alleging there is a difference, what is the difference?

            1. 8.1.2.1.1.1

              Examiners are Judges in the same sense as PTAB Judges are.

              This is simply incorrect — at a fundamental level.

              Examination involves a give and take and operates in a “first instance.” But still operates “under the law,” and examiners do NOT (properly) get to decide what that law IS (and don’t let the wayward examiners like Random Guy who post here f00l you).

              I “get” why you want to equate the two (and there is an historical angle of the PTAB judges evolving from a title of “Super Examiner,” but an adjudicatory nature and an executive nature reflect two different branches of the government.

              I have spoken previously of the “fourth branch” nature of the modern executive agency (and the dangers therein of concentrating the powers of different branches within a single branch), but even such discussions recognize the distinctions of the roles of examination (executive branch executing the law) and adjudication (judging situations under the law).

              Below, Greg remarks (rather surprisingly) that APJs are not judges. Just as much as he is mistaken in removing the aspect of adjudication, you err in the opposite direction of over-extending the aspect of adjudication.

      3. 8.1.3

        Greg, your “ or even revoke it once granted (interference)” is disingenuous.

  4. 7

    Another possibility to having the advice and consent for each PTAB APJ is to create a Commission (of Senate approved Commisioners a la the ITC) under the Director to review PTAB decisions for which at one of the parties requests such further review

  5. 6

    Who here wants Pwezident Lying Criminal P-ssygrabber appointing anybody to anything?

    Only a f—-king class A id-jit would want that.

    1. 6.1

      I agree that political appointments can be problematic.

      1. 6.1.1

        link to lawyersgunsmoneyblog.com

        So much for the myth of judges just “calling balls and strikes”. LOL

        But of course the maximalists just want these Federalist Society @wipes installed because of their “strict” approach to the law. Riiiiiight….

        1. 6.1.1.1

          Your One Bucketing is noted (as is your flagrant disregard of long-standing acrimony against the judicial branch — oh wait, THAT acrimony is against the Ends that you want, so of course you pull your typical Trump act and pretend that the “Rule of Malcolm’s Feelings” is an actual substitute for the Rule of Law).

          1. 6.1.1.1.1

            You sound like you’re on drugs, Bildo.

            The bad kind. Or maybe you’re just going senile?

            1. 6.1.1.1.1.1

              It is entirely unclear as to what basis you would lean on for the ad hominem here.

              Not that you ever really bother with any other basis than your feelings, Oh Trump of this Blog.

    2. 6.2

      LOL, I just knew we would have a much better chance of killing the illegal PTAB once the light bringer left office. Let that hate grow inside you as the PTAB is like the President himself invaliding a decision of a light bringer judge!

      1. 6.2.1

        LOL

        Wut????

  6. 5

    Re: “However, the increased responsibility of AIA Trials has pushed their role into the territory of Principal Officers that must be appointed by the President.”
    Isn’t that still an open question for the anticipated Fed. Cir. en banc review?

    1. 5.1

      Kimberly loves getting lost in that Constitution stuff, but why didn’t Ray raise his hand and say, “Uh, what about Interferences?”

      1. 5.1.1

        Good point. An amazing number of even patent attorneys do not seem to realize that for many years under revised 35 USC 135 the PTAB APJs for interferences handle disputed inter parties patent and application claim validity issues nearly as often [if not more often, since they come first], than priority of invention disputes, and those validity challenges are not limited to prior patents or publications as are IPRs. Including 112 issues, on sale bars, and other complex disputed evidentiary issues.

      2. 5.1.2

        Because an interference is subject to de novo trial under 35 usc 145, so it just like ‘suing out a patent’ under the doctrine of property rights? Does that help you?

    2. 5.2

      I do not understand how the AIA increased the responsibilities of the PTAB APJs compared to the responsibilities of BPAI APJs who where handling interferences.

  7. 4

    “Incidentally, I would note that civil servant status for APJs has not actually fixed the appeal backlog problem. Some other solution is really needed for that purpose, in any event.”

    Your data from the link is (are?) several years old, when the ex parte backlog was about 25,000 cases. End of FY19 (September) shows a backlog of 8,606, with many more judges working on it as compared to 2014. Your point may be that making APJs civil servants did not fix all backlog problems, which is true.

    There was a time in the 90’s when PTO management preached that examiners and judges should work “differently” and did not ask Congress for more hires. Management told each other that “we must re-engineer the process because we cannot hire our way out of the backlog” of applications and appeals. When that didn’t work, examiners were hired en masse, but new APJ hiring was not commensurate with the increased appeal workload. Thus, a 25,000 case backlog.

    There is currently no problem with the ex parte appeal backlog — no problem except perhaps it going away entirely — due to the tremendous number of bodies hired for the AIA post-grant proceedings. The ex parte backlog of 8,606 is a collateral success.

    1. 4.1

      Your point may be that making APJs civil servants did not fix all backlog problems, which is true.

      Correct, that was my only point in linking to that blog post.

  8. 3

    Quickest, easiest, most certain, and only constitutional solution:

    Eliminate such trials entirely.

    With the added benefit of lifting the heavy burden from the backs of the CAFC and its judges.

    1. 3.1

      Or we could just put bullets in the heads of everyone who asserts an invalid patent.

      I mean, as long as we are proposing @-h-o-l-e b.s. solutions just to clutter up the blog, why the heck not? Good for the bullet making companies, too.

  9. 2

    Seems that the easiest way to solve the problem is to go back to the pre-1975 arrangement in which APJs are appointed by the president and confirmed by the senate.

    1. 2.1

      Easiest way? Examiners-in-Chief were made civil servants because the backlog of cases was getting out of hand, as the political appointment process simply took too long. That was back when there were maybe 10-15 judges on the Board. Now, a Board of nearly 300 judges would need to be appointed (or re-appointed) and maintained.

      1. 2.1.1

        Examiners-in-Chief were made civil servants because the backlog of cases was getting out of hand…

        O.k., but that was back when we mistakenly believed that APJs could be civil servants. We now know better. One does what one can and not what one cannot. Now that we know that the work done by APJs requires presidential appointment and senate confirmation, we should require presidential appointment and senate confirmation.

        Incidentally, I would note that civil servant status for APJs has not actually fixed the appeal backlog problem. Some other solution is really needed for that purpose, in any event. Meanwhile, as Prof. Crouch notes above, the AIA has raised the profile of the PTAB, so it is not clear to me that the problem of these appointments languishing for want of attention is really a likely outcome anymore.

        In other words, it is not clear that your historical point—interesting though it might be—is quite relevant.

        1. 2.1.1.1

          “Now that we know that the work done by APJs requires presidential appointment and senate confirmation”

          Devil’s advocate? I do not know that.

        2. 2.1.1.2

          “Now that we know that the work done by APJs requires presidential appointment and senate confirmation”

          It does not, according to the prevailing (present) law of the Federal Circuit. Where have you been? The APJs are at-will employees, as are most lawyers employed by the US government.

          1. 2.1.1.2.1

            The very premise of this thread is that the Congress is considering what legislative fixes might be necessary if it turns out that statute as previously drafted is not tenable. I was commenting based on the assumption that the committee hearing is not superfluous. That is to say, I am assuming that the higher authorities (CAFC en banc or SCotUS) will conclude that (1) the Arthrex panel was correct that there is an appointments clause problem here, but (2) that the CAFC’s remedy is not appropriate, in which case further legislation will be needed to set things right.

            Naturally, if (as you suggest in 2.1.1.1) the statute was fine all along, or if (as you suggest in 2.1.1.2) the statute as re-worked by the CAFC in Arthrex is fine, then there is nothing for the Congress to do and this committee hearing is superfluous. I do not wish to be mistaken for taking up the position that such an outcome is impossible. Those are entirely plausible outcomes. If either is correct, however, then the committee hearing is largely superfluous, as is this thread.

            1. 2.1.1.2.1.1

              I am currently watching an “Office” marathon and you are starting to sound a bit like Dwight. I usually agree (silently) with what you have to say. We can agree that the whole thing is, as they say, “unsettled.” But this whole Constitution thing has a kind of beauty, no?

              1. 2.1.1.2.1.1.1

                BTW, there will be a quick legislative fix and none of this will matter.

            2. 2.1.1.2.1.2

              It’ll be like the last time. A quick legislative fix.

        3. 2.1.1.3

          “it is not clear to me that the problem of these appointments languishing for want of attention is really a likely outcome anymore.”

          Appointments always languish for attention (it’s a political process; see above), but the District Courts and the Courts of Appeal carry on because their “stakeholders” do not complain about the backlogs that much.

          1. 2.1.1.3.1

            Appointments always languish for attention…

            This does not appear to be true. Pres. Obama had the overwhelming majority of his senior executive agency appointments in place by six months into the start of his term. It is true that appointments languish under this administration, but Pres. Trump is the exception, not the rule.

            1. 2.1.1.3.1.1

              I don’t see the relevance of comparing “senior executive agency appointments.” How does Obama compare with judicial appointments? E.g., isn’t Justice Garland doing fabulous work on SCOTUS these days?

              1. 2.1.1.3.1.1.1

                APJs are senior agency staff, not judges. The numbers that I linked are the relevant comparison. Art. III judicial nominations are not the relevant analogue.

                1. I disagree. Congress does not require APJs to be “senior agency staff.” Congress requires that APJs — do what?

                2. By “DC,” i mean the District of Columbia but if so, have you been to The Hill where the sausage is made.? Congress said IPRs must be finished in 1 year. Now, every dissatisfied party will demand Director review. Whoops.

  10. 1

    As touched upon previously (link to patentlyo.com ), I agree with Greg and do not think that the AIA has any traction with a notion of “increased responsibility [… ] has pushed their role into the territory of Principal Officers

    See also: link to patentlyo.com

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