Analysis

Constitutionality Ruling's Aftermath: A PTAB Perspective

Law360 (November 8, 2019, 6:23 PM EST) -- The Federal Circuit has stripped job protections for judges at the Patent Trial and Appeal Board amid a constitutional challenge, a move that some attorneys say casts doubt over the independence of the board’s judges moving forward.

The appeals court ruled late last month that the procedure for appointing PTAB judges violated the Constitution's appointments clause. To fix the problem, the court gave the U.S. Patent and Trademark Office director broad power to fire judges.

The court reasoned that allowing judges to be removed without cause provides enough constraints on the PTAB for the board to pass constitutional muster.

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