Eleven months ago the Federal Circuit held that the Administrative Patent Judges who serve on the Patent Trial and Appeal Board, were unconstitutionally appointed because they act as “principal officers” within the meaning of the Constitution but were not appointed with the advice and consent of the Senate as required by the Appointments Clause. The court adopted a narrow “remedial approach” in which it “sever[ed] any problematic portions [of the statute] while leaving the remainder intact.” The court thus invalidated Title 5’s removal restrictions, as applied to these administrative patent judges. , See 35 U.S.C. § 3(c). Because the APJs can be removed without cause, the court concluded that, going forward they were inferior as opposed to principal officers. It has remanded scores of cases to the PTAB for reconsideration by a new panel of APJs.All parties have sought certiorari. The government argues that there was no Appointments Clause violation at all, and regardless that no remands were required. The patent owner argues that the Federal Circuit did not go far enough, and that there is no remedy for the purported Appointments Clause violation here. And some are of the view that the Federal Circuit got it just right. As the Supreme Court turns to its October 2020 Term, it will decide whether to take up this issue, following on decisions such as Lucia v. SEC and Financial Oversight & Management Board for Puerto Rico v. Aurelius.The stakes are high. Left unaltered, the Federal Circuit’s decision will lead to do-overs for potentially hundreds of invalidated patents. And if the patent owners’ arguments were to prevail, it would potentially bring down the entire statutory regime for Patent Office review (or at least re-review) of patentability decisions -- affecting hundreds of patents (and ultimately patent cases) each year. John O’Quinn, a frequent Federal Circuit practitioner with Kirkland & Ellis LLP in Washington D.C., will introduce the topic and its implications for patent practice, and Professor Aditya Bamzai, an expert on the Appointments Clause from the University of Virginia Law School, will discuss the constitutional issues presented by the caseFeaturing: John O'Quinn, Partner, Kirkland & Ellis LLP Aditya Bamzai, Associate Professor of Law, University of Virginia School of Law

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