February 15, 2019 Article

Are Administrative Patent Judges Properly Appointed Under the Appointments Clause?

Patent Trial and Appeal Board administrative patent judges are not empowered to render final written decisions eliminating patent owners’ rights.

By Alex Chan

The Leahy-Smith America Invents Act (AIA), which was passed by Congress and signed into law by President Barack Obama in 2011, created what is now known as the Patent Trial and Appeal Board (PTAB), which is one of the administrative arms of the United States Patent and Trademark Office. Public Law 112–29, sec. 7(c) (effective Sept. 16, 2012), 125 Stat. 284. The purpose of PTAB, which typically assigns a panel of three different administrative patent judges (APJs) to hear different disputes, is simple—to provide a legal mechanism by which to review issued patents that may have been inappropriately granted. This mechanism is known as the inter partes review (IPR).

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