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House Panel to Weigh Federal Circuit’s Patent Judges Ruling (1)

Nov. 13, 2019, 5:46 PMUpdated: Nov. 13, 2019, 10:24 PM

A House Judiciary panel will examine a recent Federal Circuit decision that Patent and Trademark Office administrative judges were unconstitutionally appointed.

The committee’s Courts, Intellectual Property and the Internet subcommittee is planning a Nov. 19 hearing to discuss how the ruling in Arthrex v. Smith & Nephew affects litigants and attorneys filing challenges at the Patent Trial and Appeal Board.

Arti Rai, a professor at Duke Law; John Duffy, a professor at the University of Virginia School of Law; Robert Armitage, an IP policy and strategy consultant, and John Whealan, the dean for IP law studies at George Washington University Law School, are scheduled to testify, a House Judiciary aide said.

The hearing is likely to spotlight how the court’s Oct. 31 decision impacts individual patent challenges.

Arthrex “threatens to inject an enormous amount of uncertainty into the patent system,” U.S. Rep. Hank Johnson (D-Ga.) said in an emailed statement. Johnson has been working with his Senate Judiciary counterparts to rewrite federal patent eligibility law.

The U.S. Court of Appeals for the Federal Circuit said PTAB judges should have been appointed by the president and confirmed by the Senate because of the power they had. The Commerce Department secretary has been appointing the judges since Congress passed a 2011 law that created the administrative patent review process.

The court addressed the issue by severing part of the law barring PTAB judges from being fired without cause. Johnson questioned that move.

“I am concerned that the Arthrex court’s remedy of removing civil service protections for administrative patent judges means that there may not be enough transparency into when political pressure may have affected a case, to say nothing of being unfair to the civil servants who signed up for a different position than they now have,” Johnson said.

The Federal Circuit panel said its ruling only applies to cases where litigants have presented an appointments clause challenge on appeal. The court ordered a new hearing before a new panel of PTAB judges, in a challenge filed by Smith & Nephew Plc over an Arthrex Inc. patent for a surgical device.

To contact the reporter on this story: Malathi Nayak in Washington at mnayak@bloomberglaw.com

To contact the editors responsible for this story: Rebecca Baker at rbaker@bloomberglaw.com; Keith Perine at kperine@bloomberglaw.com