Creative Lawyering Puts Patent Tribunal to Constitutional Test

The constitutionality of the Patent Trial and Appeal Board, already tested with a barrage of legal challenges, will face more tests as creative lawyers find new lines of attack.

Only one argument, over the way PTAB judges are appointed, has connected so far, although the case may get a U.S. Supreme Court review. The low success rate still isn’t stopping people from mulling fresh ideas to fight the board and its review proceedings.

Landing some of these arguments could force certain changes at the board. One that’s being tested in court may, if successful, require revamping the board’s fee system ...