PTAB Patent Judges are Unconstitutional - Can now be fired without cause!

he Federal Circuit ruled Thursday that the way Patent Trial and Appeal Board judges are appointed is unconstitutional because they do not receive enough oversight and supervision from the director of the U.S. Patent and Trademark Office.

To remedy the violation, the appeals court struck down a part of the Patent Act that made it difficult for PTAB judges to be removed by their superiors. That change "provides significant constraint on issued decisions" from the board, bringing it into compliance with the appointments clause of the U.S. Constitution, the court ruled.

Since the inter partes review at issue, which involves an Arthrex Inc. suture patent, was decided when the structure of the PTAB violated the Constitution, the Federal Circuit remanded the case to be decided by a new panel of administrative patent judges, who are now in compliance.

"We conclude that challenges under these circumstances should be incentivized at the appellate level and accordingly the remedy provided is appropriate," the court said. "We have decided only that this case, where the final decision was rendered by a panel of APJs who were not constitutionally appointed and where the parties presented an appointments clause challenge on appeal, must be vacated and remanded."

Anthony Cho of Carlson Gaskey & Olds PC, an attorney for Arthrex, said Thursday evening that "we consider this result a victory for the Constitution."

The clause specifies that "principal" officers of the government must be appointed by the president and confirmed by the Senate, while "inferior" officers can be appointed by heads of departments. The USPTO treats PTAB judges as inferior officers, and they are appointed by the secretary of commerce.