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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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Admissibility of Evidence from Post-Grant Proceedings In District Court Trials
By Richard S.J. Hung, Alex S. Yap and Stephen J.H. Liu
Courts are increasingly excluding all evidence relating to post-grant proceedings before the PTAB, except when it is used for impeachment. This article reviews recent decisions on this issue from some of the nation’s busiest patent districts.
U.S. Tax Court Rules on Valuation of Michael Jackson’s Right of Publicity
By Stan Soocher
The significance of the U.S. Tax Court decision for celebrities and their estates is clear: Prior to now, as Tax Court Judge Mark V. Holmes noted: “We haven’t had a case directly addressing the taxability of the image and likeness.”
Counterfeiting vs. Infringement: Second Circuit Weighs In
By Eric Alan Stone and Catherine Nyarady
In two recent cases, the Second Circuit provided guidance as to the circumstances that may give rise to liability for counterfeiting, as distinct from mere infringement, and addressed liability for contributory infringement for counterfeiting.
TikTok Dances Around Another Copyright Infringement Suit
By Angela Morris
The Texas lawsuit alleged that the social video app and parent company ByteDance Ltd. copied software code, and deleted or altered copyright management information in the code, and then used the code in the app that has 175 million downloads.
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