by Dennis Crouch
United States v. Arthrex, — S.Ct. — (2021)
The Supreme Court has confirmed that PTAB Judges yield unreviewable authority during inter partes review and therefore acting as Principal Officers under the US Constitution. Therefore the APJs should have been nominated by the President and confirmed by the Senate.
BUT, the Court solved the problem in a new way–by making PTAB determinations reviewable by the USPTO Director. This leaves the PTAB system in-place, but will place major insider political pressure on the PTO Director (and current Acting Director).
https://www.supremecourt.gov/opinions/20pdf/19-1434_ancf.pdf
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One irony here is that the person with new political accountability is Drew Hirshfeld. Although he is sitting in the Director’s seat, Hirshfeld was not appointed as PTO Director by anyone. Although the Supreme Court refers to him as “Acting Director,” the administration has taken pains to clearly state that he is not the acting director. Rather, Hirshfeld’s title is a person “Performing the functions and duties of the Under Secretary of Commerce for Intellectual Property and Director of the USPTO.”
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Chief Justice Roberts wrote the Majority Opinion.
- Parts I and II Concludes that APJs were acting as Principal Officers. This portion was joined by Justices Alito, Gorsuch, Kavanaugh, and Barrett. (5 Justices)
- Part III provides a judicial remedy by rewriting the statute to give the USPTO Director power to directly review PTAB decisions. That portion was only joined by Justices Alito, Kavanaugh, and Barrett. (only 4 Justices). However, Justice Breyer, Sotomayor and Kagan agreed in a separate opinion that the remedy was proper (although they disagreed about whether it was needed at all).
Justice Gorsuch disagreed with the remedy — He would have simply set-aside the PTAB decisions and let Congress fix the problem.
Justice Thomas dissented from the whole majority approach – finding that Congress expressly identified APJs as inferior officers and that they are two steps below the president (i.e., pretty far down on the chain). “For the very first time, this Court holds that Congress violated the Constitution by vesting the appointment of a federal officer in the head of a department.” In addition, Justice Thomas argued that the remedy is inappropriate: “If the Court truly believed administrative patent judges are principal officers, then the Court would need to vacate the Board’s decision.”
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It is telling that Chief Justice Roberts opinion does not begin with a discussion of “rights” but rather Congressional intent to create “a workable patent system.” Here, the court attempts to keep the train on the tracks, but does create real potential trouble by placing the USPTO Director in the political cross-hairs.
This case focuses on Inter Partes Revew proceedings that are decided by the Patent Trial and Appeal Board (PTAB) whose Administrative Patent Judges (APJs) are appointed by the Secretary of Commerce. This setup though has a Constitutional problem because APJs issue opinions on behalf of the U.S. Government in cases involving private property interests potentially worth billions of dollars. An individual with that power is an Officer of the United States and must generally be appointed by the US President and Confirmed by the Senate, just like is done with Federal Judges and heads of office. We obviously have some big due process problems when improperly appointed judges issue opinions deciding rights.
Regarding the Appointments Clause, Hamilton wrote that the President should appoint the officers so that the President can be held directly accountable for the good and the bad. “[S]ole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation.” The Federalist No. 77.
In its opinion, the Federal Circuit found that APJ’s were improperly appointed, but then issued a savings-severance. The appellate court invalidated the tenure protections for APJs guaranteed by statute and concluded that was enough to reduce APJs to inferior officers who did not need presidential appointment. On reflection, the Supreme Court wrote “This satisfied no one.”
Edmond v. United States, 520 U. S. 651 (1997), is Supreme Court’s key case-on-point regarding principal-officer vs inferior-officer vs no-officer-at-all. Here, the court applied Edmond – finding that the PTO Director has substantial authority over APJs – finding that “he is the boss” in most ways. BUT, there is one big exception, the PTAB director does not have authority to review the actual APJ decisions.
He is the boss, except when it comes to the one thing that makes the APJs officers exercising “significant authority” in the first place—their power to issue decisions on patentability.
Slip Op. The Appointments Clause requires politically accountable individuals be responsible in a way that leads directly to the President, and the current setup does not allow for that result. “[T]he public can only wonder ‘on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall.'” Slip Op., quoting The Federalist No. 70. The court also looked to the history of the U.S. Patent System:
When it comes to the patent system in particular, adjudication has followed the traditional rule that a principal officer, if not the President himself, makes the final decision on how to exercise executive power. Recall that officers in President Washington’s Cabinet formed the first Patent Board in 1790. 1 Stat. 109–110. The initial determination of patentability was then relegated to the courts in 1793, but when the Executive Branch reassumed authority in 1836, it was the Commissioner of Patents appointed by the President with the advice and consent of the Senate—who exercised control over the issuance of a patent. The patent system, for nearly the next hundred years, remained accountable to the President through the Commissioner, who directed the work of his subordinates by, for example, hearing appeals from decisions by examiners-in-chief, the forebears of today’s APJs.
Slip Op. All of this leads to the conclusion that APJs are acting like principal officers:
We hold that the unreviewable authority wielded by APJs during inter partes review is incompatible with their appointment by the Secretary to an inferior office.
Note here that the court does not exactly state that “APJs are principal officers” but only that they are acting as such when deciding IPRs. Regardless, it is improper for them to act-as-such because they are not principal officers.
For a solution, the court rejecting the Federal Circuit’s approach because it does not solve the unreviewability problem. The Supreme Court offers its own solution: “Decisions by APJs must be subject to review by the Director.” Here is what the court tells us: Once the PTAB makes its decision, the PTO Director then has the power to review the case and “reach his own decision.” The PTO director’s decision is then reviewable in court.
When reviewing such a decision by the Director, a court must decide the case “conformably to the constitution, disregarding the law” placing restrictions on his review authority in violation of Article II. Marbury v. Madison, 1 Cranch 137, 178 (1803).
Slip Op. The Supreme Court also makes clear that its decision only directly applies to IPR proceedings. “We do not address the Director’s supervision over other types of adjudications conducted by the PTAB, such as the examination process for which the Director has claimed unilateral authority to issue a patent.”
On remand, the Supreme Court is not requiring the PTAB to rehear any of the prior decisions. But, the PTO Director will need to issue decisions in each case indicating whether or not the office will be rehearing the case.
In deciding the cases, the PTO Director should be careful to avoid calling it a rehearing since “Only the Patent Trial and Appeal Board may grant rehearings.” 35 U.S.C. 6.
= = = =
Big questions for the patent system going forward: how does this Director-Review work and how much political lobbying is appropriate?
= = = =
I noted above that Part III – the remedy portion – of Chief Justice Robert’s opinion only garnered four votes. Not a majority. However, Justice Breyer wrote a separate opinion joined by two others that “agree with its remedial holding.” I have not parsed through how this statement differs from simply joining Part III.
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The court notes and the Thompson v. Haight decision from Judge Van Ness that I quoted a couple of weeks ago:
Judge William Van Ness—who before taking the bench had served as second to Aaron Burr in his duel with Alexander Hamilton—lamented that Congress had left the door “open and unguarded” for imposters to secure patents, with the consequences of “litigation and endless trouble, if not total ruin, to the true inventor.” Thompson v. Haight, 23 F. Cas. 1040, 1041–1042 (No. 13,957) (CC SDNY 1826). Congress heeded such concerns by returning the initial determination of patentability to the Executive Branch, see 5 Stat. 117–118, where it remains today.
Slip Op.
= = = = =
One interesting bit I saw in the opinion was the note that the Court of Customs and Patent Appeals (CCPA) was “an entity within the Executive branch until 1958.” In Ex parte Bakelite Corp., 279 U. S. 438 (1929), the Supreme Court called the CCPA a “legislative court and not a constitutional court.” As such, there was no standing requirement under Article III of the Constitution. “Even if the proceeding is not such a case or controversy, the Court of Customs Appeals, being a legislative court, may be invested with jurisdiction of it.” In 1958, Congress overturned that decision with a statement that the CCPA “is hereby declared to be a court established under article III of the Constitution
of the United States.” 72 Stat. 848.
“I have not parsed through how this statement differs from simply joining Part III.”
Why ‘agree’ and not join?
Can Justices apply a type of “line item veto” and “join” only “selective” words of a section of another’s position?
I think not.
Does this mean that the new “remedy” does NOT have the force of law (that most all are merely assuming to be there)?
Does this have to do with a silent recognition that the Supreme Court plurality wants to exercise power it does not legitimately have?
Is the Gorsuch lone “Emperor has no clothes” position a true echo of that “silent nod”…?
Actually anon you missed the biggest Constitutional issue with this opinion.
What is it? Well, it was an advisory opinion. Get it? There is no case or controversy. The director did not reverse a decision!! Get it?
“We conclude that a tailored approach is the appropriate
one: Section 6(c) cannot constitutionally be enforced to the
extent that its requirements prevent the Director from reviewing final decisions rendered by APJs.”
I did not miss what is not there. You remain confused on the difference between the issue adjudicated and the Court’s proffering of a particular remedy to that issue.
Also, Night Writer, your response here (given that you have already made your erroneous statement in two other places) is but a distraction from this different point that I have presented.
There has to be SOME effect to the fact that the Justice chose NOT to join the remedy portion of the opinion.
Sure, he states separately that he “agrees” – but clearly (factually, legally) this is just not the same.
Could it be a ‘backdoor’ out to any challenge on the Constitutionality of the Court violating Separation of Powers by legislating from the Bench on what Congress had not even contemplated?
…consider as well that the dissent disabuses the chosen remedy.
So while it is indeed worth talking about the errors of the remedy, your assertion is and remains off because you confuse and conflate what the remedy is TO and what the remedy is.
Shush.
LOL.
No.
Did you expect anything else?
Maybe instead, you want to try to actually chime in on the point presented….
In words of The Who, “Meet the new boss/same as the old boss”.
SCOTUS changed nothing for small time players: PTAB decisions are in IPRs are unreviewable, because you’re too small to get the director’s attention.
If you’re big with deep pockets, you might have some pull to get a decision reviewed by the director.
In the end it’s a bunch of word games – “They’re inferior officers but the director can review their decisions”. Big deal.
They should have kicked this back to Congress.
It is more than just ‘should have.’
The words “ultra vires” comes to mind for a judicial body — ANY judicial body — that attempts a move (remedy or otherwise) that is beyond their Constitutional authority.
We expressly have a government of limited powers.
This notion DOES apply to all three branches under the Constitution.
One cannot avoid a Constitutional crisis by fomenting a separate Constitutional crisis.
Honestly, it’s like the old joke about the 9 blind men (persons – sorry!) describing the elephant. – you know the punch line. True indeed, patent law is the without question the red headed step child of the SCOTUS now. The selective amnesia of SCOTUS is something to behold. IMHO, the ‘narrow’ issue before them on cert. is what blinds and leads them into gross error. Whereas, we all know, patent law is (or was) a complex statutory and Constitutional scheme of interrelated laws and regulations. See the ’52 Act. At present, SCOTUS ‘saved’ the statutory scheme – by putting the political appointee (PTO director, i.e., the President – head of the political Executive Department) to be accountable over – for . . . wait for it. … OVERTURNING THE JUDICIAL DEPARTMENT FINAL JUDGMENTS. In contrast, we had the pantina of the quasi-judicial admin court (the TPAB) operating in comity (harmony – but not really) with the Art III department. My point: This is exactly the reasoning of the land grant patent cases holdings – or should I say the anti-reasoning. Wherein, SCOTUS reasons that it is antithetical to the our Constitutional form of government that you can have one political appointee grant a right (any right, say the right to collect a revolutionary war pension, or mineral rights), have an election, and have that next political appointee take away that right for ‘mistake’ – or second look, further review, re-weighing the claim, fraud, etc. wherein that right is ALSO subject to Art III review. See, Hayburn’s case. This is in fact WHY and the exact scenario of why we have an independent Judiciary. This, however, is even worse. 1. Executive issues patent. 2. Court adjudicates patent, declares final legal and equitable judgment between parties. 3. Executive invades the Art III department decision and nullifies the judgment – after the fact and after final judgment. So we have gone from the King’s privy court (the PTAB’s major infirmity – IMHO), the patina, to the King herself (the political accountability of the head of the Executive department) in voiding Art III judgments. Oh! and do note the prestidigitation of SCOTUS – discussing the issue of patents rather that voiding already issued patents after an ART III judgment. Oil States, wrongly decided. This case wrongly decided. Gorsuch has it right, not our job, strike it down, send it back to Congress.
The more I think about it the strike it down and let Congress fix it would have been infinitely better.
Congress may have created another 145 or a right for another hearing. Or a hundred other things that would have given the patentee more rights. Instead what we got was the minimum amount to make it Constitutional.
And actually that was how I predicted they would change section 6(c) because it is similar to TMs and it is the minimum necessary thing to keep the status quo.
People really don’t get that CJ Roberts doesn’t want patent cases in DCs. You need to read more about other areas of law. All areas of law are saying about the same thing we are that the judges are ignorant of their specialized areas and that they get short shrift because the DC are flooded with cases.
I read an article in my state bar association journal about criminal law and the statistics. Basically, the feds play a game of either you plead guilty or everyone and your mother are going to jail for a hundred years and we are going to f u up bad even in prison. It is like a m a f i a game. Unless you have $5 million to spend to fight them, you lose and have to plead guilty.
The whole system is corrupt and broken and this is just another small piece of it.
ever more the Game of Kings…
(Just how the Efficient Infringers want it to be)
It’s bizarre that having the appointee in a mandatory review position is making the PTAB any less political. It’s the unitary executive herself now, obviating Art III judgments.
absolutely.
But remember that it was spun NOT as a problem of “being” the king herself, but that the ‘political nature’ of HAVING that person in the spotlight and theoretically accountable that was the driver.
I think that you and I (and Justice Gorsuch) gets that point, and that the notion of ‘King’s Privy Court’ suffused with this and the Oil States case DO point us in the wrong direction.
Such a sorry state that only Gorsuch gets it.
meh, it’s a starting point.
I am more upset that people cannot see the larger muck created by what the rest of the Court did.
Agreed that a new 145 would have fixed the biggest Constitutional issues, or they could have done something else, like a BK court, or elevated PTAB to a full Art II court like tax court.
Is the Director going to rehear both “the petition” and “the FWD” for all the 300+ cases and issue a decision?
The rulemaking says, in the PTAB Process you can have a rehearing at the institution stage and then after FWD, is the SCOTUS decision clear on what is the next step for ALL the cases?
The decision says “petition” in one paragraph and “final decision” in another paragraph:
“The Director accordingly may review final PTAB decisions and, upon review, may issue decisions himself on behalf of the Board.”
“We also conclude that the appropriate remedy is a remand to the Acting Director for him to decide whether to rehear the petition filed by Smith & Nephew.”
Can an “Acting Director” be an “Officer”? Or must PTAB should be indefinitely paused?
More generally, beyond the obvious hand-waving wrt the statutory language, it’s weird that that the Court decided to amend the statute in a way that that government didn’t want (“The Government defends the different approach adopted by the Federal Circuit”)
OC,
That portion of the government ‘that did not want’ was the third branch – the executive.
Neither the Executive nor the Judicial are the correct branches to be writing the law. As painfully obvious as it is, it — apparently — need be stated again: that branch is the Legislative.
Hirschfeld is not the Acting Director, but rather “Performing the functions and duties of the Under Secretary of Commerce for Intellectual Property and Director of the USPTO.” link to uspto.gov
I do not think he classifies.
Why would this new duty be qualified differently than any other duty being performed?
Serious question.
p.s. Given the review power SCOTUS has now (though unconstitutionally) bestowed on this government position, any attorneys worth their salt should now file appeals with the Director of any PTAB decisions they’re unhappy with.
Fun times ahead folks.
Fun times.
Congress should abolish the PTAB at the same time they restore patent eligibility to all areas of innovation.
APJs unconstitutional?
Ha! That’s nooooooooo problem for us!
No sirrrrreeeee Bob . . .
We’ll just make something up out of thin air! (he he — you know, like we did with our unconstitutional Mayo and Alice, innovation-killing decisions)
Easy peasy!
link to usinventor.org
If you want to use your patents you have to garner enough political clout to pick the next USPTO Director. Our founders explicitly rejected such a system in 1787.
You’ve probably already noticed or been told, but on the tiny chance you haven’t: Gorsuch mentioned your brief in his partial dissent. Congrats, I guess.
That is a HUGE congratulations Josh!
How so, NW? (unless you’re being sarcastic)
Yes, congratulations, Josh. Part of what Justice Gorsuch wrote:
Already in the AIA’s short tenure these problems have started coming home to roost—even with supposedly “inde- pendent” APJs. The briefs before us highlight example af- ter example. I leave the interested reader to explore others. See, e.g., Brief for TiVo Corporation as Amicus Curiae 6–13; Brief for 39 Aggrieved Inventors as Amici Curiae 14–23; Brief for Joshua J. Malone as Amicus Curiae 9–11. Here just consider the tale of a patent attorney at one of the world’s largest technology companies who left the company to become an APJ. See Brief for US Inventor Inc. as Amicus Curiae 12. This private advocate-turned-APJ presided over dozens of IPRs brought by his former company. Ibid. In those proceedings, the company prevailed in its efforts to cancel patents damaging to its private economic interests 96% of the time. Ibid. After six years of work, the APJ decided he had done enough, resigned, and (yes) returned to the company. Ibid. Without a hint of irony, that com- pany has filed an amicus brief in this case to inform us, as a self-described “frequent user of the IPR process,” about “the benefits of the system.” Brief for Apple Inc. as Amicus Curiae 3. Nor is that the only large technology company to have its attorneys rotate in and out of the PTO to similar ef- fect. See Brief for B. E. Technology, LLC, as Amicus Curiae 17 (discussing a Google attorney). Oil States virtually assured results like these.
I reference your addition on a newer thread at:
link to patentlyo.com
Obviously, Arthrex is the big news today, but do not omit to read Judge Lourie’s excellent concurrence in today’s order denying en banc rehearing in Amgen v. Sanofi
No wonder only three judges signed up to that part of the en banc denial.
On page 5, Judge Loonie gets it wrong:
“This court has already considered the impact of functional means claim limitations on whether a disclosure is commensurate in scope with the claim. The answer is that single means claims claim too much. See In re Hyatt, 708 F.2d 712, 714 (Fed. Cir. 1983) (Rich, J.) (“The proper statutory basis for the rejection of a single means claim is the requirement of the first paragraph of § 112 that the enabling disclosure of the specification be commensurate in scope with the claim under consideration. The long-recognized problem with a single means claim is that it covers every conceivable means for achieving the stated result, while the specification discloses at most only those means known to the inventor.”). Multiple means claims simply compound the problem.”
This is NOT a proper recollection of the ‘single means’ issue and what Congress did in 1952 to address that issue.
To insert the fallacy of “Multiple… simply compounds the problem” is WORSE than scrivining a new law.
[T]here is a clause in the AIA saying if any part is found unconstitutional then the whole things fails…
This is not true. Rather, this is simply an urban legend that gained wide circulation around these part. You can prove as much to yourself by trying to cite this supposed non-severability clause. Try as you might, you will find that there is no such language in the AIA, and never was in the text that circulated in the 112th Congress.
In fact, the actual AIA was just a series of emendations to Title 35. Title 35 already contains a severability clause (“If any provision of Title 35, as enacted by section 1 hereof, is declared unconstitutional or is held invalid, the validity of the remainder of this title shall not be affected”), so the existing code text already makes the AIA trials provisions severable from the other AIA provisions.
Like Paul’s “version,” this version too is simply false.
The “not find” is NOT dispositive.
What is dispositive is the provision (default) of non-severability coupled with WHAT Congress contemplated for THIS piece of legislation.
Greg’s “series of emendations” C R P is just that: C R P. That is NOT how legislation works.
Gorsuch paints the picture far more accurately…
“Without some direction from Congress, this problem cannot be resolved as a matter of statutory interpretation. All that remains is a policy choice.”
One does not (cannot) resolve one Constitutional infirmity with ANOTHER Constitutional infirmity.
How long have the words “Only the Patent Trial and Appeal Board may grant rehearings.” been part of 35 USC 6 being held unconstitutional here? Isn’t it long before the AIA established the IPRs to which this decision is reportedly limited?
Remember that you used to have the out to DC that they removed for IPRs.
Indeed, De Novo trial review under 35 USC 145. The IMHO constitutional ‘safety valve’ that save ex parte reexamination. What a slippery slope we are on.
This topic makes me miss Ned’s insights and wonder his thoughts.
I miss Ned as well. He also went through a transformation working on the right v. public right issue for patents. In the end, Ned agree with me that Lemley was an anti-patent judicial activist that made many misrepresentations in his papers. He finally came onboard that SV was ploughing money into burning down the patent system.
This meant a lot to me after years of arguing with Ned.
I also miss Ned. He was the best thinker on these boards, even when I disagreed with him. I always learned something from our exchanges.
“This scheme unsurprisingly resulted in the Executive Branch issuing many invalid patents and the Judicial Branch having to decide many infringement cases. See S. Doc. No. 338, 24th Cong., 1st Sess., 3 (1836). Judge William Van Ness—who before taking the bench had served as second to Aaron Burr in his duel with Alexander Hamilton—lamented that Congress had left the door “open and unguarded” for imposters to secure patents, with the consequences of “litigation and endless trouble, if not total ruin, to the true inventor.” Thompson v. Haight, 23 F. Cas. 1040, 1041–1042 (No. 13,957) (CC SDNY 1826).”
Was there something indicating this would be cited, or was Dennis’ post last Tuesday just fortuitous?
DC. “ We obviously have some big due process problems when improperly appointed judges issue opinions deciding rights”
I would think the “bigness” of the “due process problem” would depend highly on what criteria were used to select the judges and other factors, not just “arcane rule from centuries ago wasn’t followed to the letter.”
The fact that most Federal judges appointed during the last administration were appointed by people who represent a distinct minority of the population (a minority which includes a notorious anti-government dominionist contingent) seems to me like a much bigger “due process” concern.
Represent a distinct minority….
What is the actual legal ‘tie’ from this observation to your view that (somehow) there has been Major due process issues?
Do you really think that the electoral college – working as it was intended – has such ‘ripple effects?’
Or are you just ‘being Malcolm?’
“The Electoral College working as intended” and “what the Electoral College intended is bad” are both true statements.
LOL – your feelings that the original intent of the electoral college being ‘bad’ is nothing more than a reflection of your lack of understanding of the democratic republic system of government of this coountry.
Don’t like it? Feel free to move to one of those
F
A
I
L
E
D
socialist experiment countries.
Don’t let the door hit you on the way out.
Hmmm…wasn’t this exactly my prediction? That they would say they were principal officers and re-write the AIA so that the director could review the judgements of the APJs?
I think so.
Here is the whole opinion in a nutshell:
Not constitutional the way it is (and Moore’s solution doesn’t fix it), so we hold the following: (guess what? This is what I predicted they would do.)
“We conclude that a tailored approach is the appropriate
one: Section 6(c) cannot constitutionally be enforced to the
extent that its requirements prevent the Director from reviewing final decisions rendered by APJs.”
The Director accordingly may review final PTAB decisions and, upon review, may issue decisions himself on behalf of the Board. Section 6(c) otherwise remains operative as to the other members of the
PTAB.
Try as a I may, I simply cannot find any indication in the legislative record that Congress had desired — let alone contemplated — this newly written law.
I suppose if you make enough predictions, one of them is bound to be right. Since you’ve been rather vocal about the academic authors being required to make full disclosures, maybe you should remind people about your other predictions on the outcome of this case before patting yourself on the back too hard.
link to patentlyo.com
(at 2)
link to patentlyo.com
(at 4)
Perhaps a step back…
NPtC
Why diminish the thunder?
The @4 was July
The @2 was November,
What he is crowing about here was established at or about oral arguments circa end of February.
Predictions may naturally change as information becomes available.
Nothing wrong with that.
Parts I and II (only)….
Part III…
Bad scrivening and legislative REwriting…
Gee, who could NOT have predicted that the Supreme Court would make a bigger mess of things….
As soon as you see, anon, that they are little s c u m b a g s filled with their own aggrandizement, then it is easy to predict what they will do.
+1
Not exact, I think, but extremely close. Well done.
link to patentlyo.com
Actually it is exact on ipwatchdog where I identified second 6(c) and what they would do.
But, frankly, it was pretty easy to predict this one after listening to the oral arguments.
I agree with Ben, NW, that your prediction was about as spot on as it is possible to be. I salute your astute prognostication here.
Nice call, NW. What do you expect with American Axle?
NW can speak for himself, but I expect that they will decline cert. There have only been three changes in personnel since they last (unanimously) torched subject matter eligibility, but it takes four votes to grant cert.
That means that it will require a change of mind in at least one of the Aliceincumbents to grant cert. now. If one of the Alice incumbents wanted to change his or her mind, Sequenom was the perfect case to do so, but they passed on that one.
I think that if they were not interested in revisiting the issue in Sequenom, then I am dubious that they will choose to do so in American Axle. I would be delighted to be wrong in this prediction, however.
I’m struggling to wade thought all the United States v. Arthrex surprise partial concurrences and partials dissents, and here are the basic questions I hope you will cover:
Have you found any Justice supporting the Fed. Cir. decision below? [I.e., Is this a unanimous reversal?]
Have you found a any Justice supporting the Fed. Cir. argument below that PTO APJs are senior officers requiring Senate approval rather than properly appointed junior officers? [I.e., is this a unanimous decision that APJs are junior officers?]
Is there a majority for requiring a part of the patent statutes to be held unconstitutional so that final review of PTAB decisions is by the PTO Director? If so, will not PTAB decisions still continue to be appealable to the Fed. Cir., and also subject to APA suits against the Director if not timely decided?
See above. You need only read a few sentences.
“ [I.e., Is this a unanimous reversal?]”
It is a vacate and remand.
A mulligan, if you will.
If anything, this is even more atrocious from a Rule of Law standpoint, as we are no longer even pretending that the Court cannot legislate from the bench and draft (and scriven) what they want as opposed to anything that Congresss may have actually done.
I agree anon. And I think we discussed this on the other blog. I told you that this what they would do.
And, again, there are at least two parts to this. Predicting what the Scotus will do and a discussion of whether it is proper.
Gorsuch here was right. Dump the AIA and let Congress fix it.
Just think there is a clause in the AIA saying if any part is found unconstitutional then the whole things fails and the opinion says it is unconstitional but we fixed it.
Re: “there is a clause in the AIA saying if any part is found unconstitutional then the whole things fails”
Not true. The opposite of that was proposed, but not adopted.
Paul,
Your characterization falls flat.
Cannot say that I am surprised.
The opposite of that was proposed, but not adopted.
The relevant exchange is Amendment 11 in Vol. 157(91) of the 2011 Congressional Record, reproduced below in its entirety.
As one can see, the proposed amendment never received a vote. I suppose that it is accurate—strictly speaking—to say that it was “not adopted,” but I would not wish to leave anyone with the impression that it was actually voted down. Rather, it was withdrawn before a vote could be held because the person who offered the motion (Rep. Watt) lacked the proxy power to make the proposal on Rep. Waters’ behalf, and Rep. Watt did not wish to make the amendment on his own authority.
THIS ^^^ was the SECOND instance – the sham one meant to deflect from the original action that cleanly indicated a removal of a severability amendment.
Greg is just being inte11ectually DIShonest.