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Proving that even the driest of constitutional issues can have significant practical effect, the U.S. Supreme Court recently heard argument in United States v. Arthrex. Before the Court was whether administrative judges of the PTAB have been appointed unconstitutionally.
Proving that even the driest of constitutional issues can have significant practical effect, the United States Supreme Court recently heard argument in United States v. Arthrex, Inc., et al., No. 19-1434. Before the Court was whether administrative judges (APJs) of the United States Patent and Trademark Office’s (USPTO) Patent Trial and Appeal Board (PTAB) have been appointed unconstitutionally under the America Invents Act (2011), particularly in view of their adjudicatory function in connection with inter partes review proceedings (IPRs). More specifically, are such judges “principal officers” under the Appointments Clause of Article II, Section, Two, Clause Two of the U.S. Constitution such that, to pass muster, they must be appointed by the President and confirmed by the U.S. Senate? Or are they instead “inferior” officers, properly appointed by the Commerce Secretary in consultation with the Director of the USPTO (Director)?
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By Li-Jen Shen, Cory Smith and George C. Chen
The Trademark Trial and Appeal Board (TTAB) has finally filled a gap left by the U.S. Court of Appeals for the Federal Circuit in the standard for finding deceptive intent when trying to prove fraud on the USPTO.
Ninth Circuit Finally Resolves Pre-1972 Sound Recordings Royalties Issue
By Robert W. Clarida and Robert J. Bernstein
The Ninth Circuit ruling in Flo & Eddie may turn out to be last stop on the long and winding road the owners of pre-1972 recordings have traveled in their efforts to obtain compensation for public performances through platforms like Sirius.
NFTs and Virtual Patent Marking
By Willem Klein
Patent marking is an important step in the patent lifecycle as it is generally required to seek damages from infringers prior to the date the suit is filed. While virtual marking has somewhat reduced the overhead of marking, it suffers from the same problems all Internet-based evidence runs into in court: websites are ephemeral and have intermittent accessibility, as well as poor public logging of when information existed where, and for how long. NFTs on a digital blockchain could potentially overcome these hurdles, while still providing the benefits of virtual marking via websites.
By Joshua R. Stein and Jeffrey S. Ginsberg
Pair of Federal Circuit Decisions Address Standing to Appeal Adverse IPR Decision
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