Federal Circuit Says PTAB Judges Are Not Constitutionally Appointed

A decision by the Federal Circuit yesterday provided some brief, but intense, excitement amongst the patent nerds in our audience. 

Over the past 10 years, the Patent Office has more than quadrupled the size of it's internal appeals board, the Patent Trial and Appeal Board, staffing it with "Judges" that have the power to invalidate patents at the request of any member of the public (willing to shell out $250k+ for the proceeding and, mostly, attorney fees).  Because it is a much cheaper option than litigation, or a cheap add-on to pending litigation, the PTAB has been popular for those wanting to invalidate patents for various reasons.

The short version of the decision is that the constitutionality of these "Judges" at the USPTO was challenged successfully by showing that the nature of their position makes them superior officers which require Executive appointment, which did not happen, because they are hired pretty much like any other employee at the USPTO.  The solution was to sever a portion of the law that gave them employment protections, so that on the balance, they appeared more like inferior officers, which do not require an Executive appointment.

So, other than a small handful of appeals that preserved the Appointments issue on appeal, the decision will likely have essentially zero practical effect.  A bit anti-climactic for those of us hoping for more.

To make this a bit more applicable to the rest of the commenters, should patent practitioners be concerned about potential malpractice liability for failing to bring up a constitutional challenge to the appointment of the patent Judges in every one of their appeals?  Or for failing to consult with the client about whether to include a constitutional challenge in their appeals?  I don't do this particular kind of patent work, but feel like it would be a reasonable approach to NOT include a constitutional challenge to the appointment of the Judge in every one of my appeals, but maybe I'm off here.


Here's the non-paywall version:
https://www.ipwatchdog.com/2019/10/31/federal-circuit-says-ptab-judges-not-constitutionally-appointed/id=115556/

Also available on Law360 for those with a subscription:
https://www.law360.com/ip/articles/1215822/fed-circ-rules-ptab-judge-appointments-unconstitutional