On Thursday, a panel of the Federal Circuit found that PTAB judges have to date been unconstitutional appointments.  The panel thinks that it has cured that issue going forward by severing a portion of Title 35 that allows for removal of PTAB judges only for cause.  But the decision’s proposed remedy for cases on appeal having Final Written Decisions issued by unconstitutional panels is remand to a new panel with a new oral hearing.  It is estimated that there are about 160 PTAB Final Written Decisions currently on appeal.

We will continue to monitor developments and report.

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Matt Johnson is one of the Firm's primary contacts on practice before the PTAB. Currently co-chairing the Firm's PTAB subpractice and involved in proceedings at the Board since the first day of their availability in September 2012, Matt regularly represents clients as both petitioners and patent owners at the Board. He further works as an advocate for clients in appeals from Board proceedings at the Federal Circuit.

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