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Gary Lawson: Appointments and Illegal Adjudication
Michael Ramsey

Gary Lawson (Boston University School of Law) has posted Appointments and Illegal Adjudication: The AIA Through a Constitutional Lens (George Mason Law Review, forthcoming) on SSRN.  Here is the abstract:

In 2011, Congress enacted the America Invents Act (“AIA”), largely in order to provide more effective mechanisms for invalidating, or cancelling, already-issued patents. The statute provides for inter partes review, in which patents, on the request of third parties, can be cancelled by an administrative body, the Patent Trial and Appeal Board (PTAB), subject to deferential judicial review. The constitutionality of this scheme is currently (as of January 9, 2018) before the Supreme Court in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, but the arguments in that case understandably focus on the consistency of inter partes review with modern case law. This article instead looks at the Constitution’s original meaning (which, in the particulars relevant to this problem, bears only modest resemblance to modern case law) and finds two fundamental defects in the AIA. First, executive agents, such as the PTAB judges, cannot cancel vested patent rights, because such action deprives patent holders of property “without due process of law.” As an original matter, due process of law requires judicial action for a deprivation of vested rights. The federal courts recognized this basic fact in the nineteenth century with regard to both land patents and invention patents. Perhaps one can apply the inter partes mechanism to patents granted after enactment of the AIA in 2011 if one views application of this mechanism as a “defeasibility condition” built into the patent grants, but that condition did not exist for patents issued prior to 2011. Second, all but one of the PTAB officials who adjudicate patent validity are appointed by the Secretary of Commerce, in a fashion appropriate for inferior officers of the United States. But the decisions of the PTAB, which by statute take place in panels of three officers, are the final word within the executive department. There are no internal appeals to any executive body outside the PTAB. Any executive actor who issues final decisions on behalf of the United States is constitutionally a principal rather than inferior officer and must be appointed by the President with the advice and consent of the Senate. Accordingly, all of the PTAB judges, and not merely the Director of the PTO, must be appointed as principal officers in order for the PTAB to perform its statutory function.