The U.S. Patent and Trademark Office is arguing that a recent Federal Circuit ruling on the constitutionality of administrative patent judges doesn’t apply to the agency’s trademark judges.
In Arthrex v. Smith and Nephew, the U.S. Court of Appeals for the Federal Circuit found Patent Trial and Appeal Board judges were unconstitutionally appointed. The court fixed the constitutionality of their appointment by severing part of the law preventing the judges from being fired without cause.
The Federal Circuit has since pointed to Arthrex in sending disputes back to the PTAB for new proceedings.
However, Arthrex “addressed the constitutional status of...