News & Analysis as of

Appointments Clause Due Process

Sterne, Kessler, Goldstein & Fox P.L.L.C.

Federal Circuit Appeals from the PTAB and ITC: Summaries of Key 2021 Decisions

[co-author: Jamie Dohopolski] Last year, the continued global COVID-19 pandemic forced American courts to largely continue the procedures set in place in 2020. The U.S. Court of Appeals for the Federal Circuit was no...more

Haug Partners LLP

The Federal Circuit holds that the Structure of the PTAB is Constitutional

Haug Partners LLP on

Is the Patent Trial and Appeal Board (“Board”) constitutional? This was a question asked by Mobility Workx in Mobility Workx, LLC v. Unified Patents, LLC, 2021-1441, 2021 WL 4762265 (Fed. Cir. 2021). Mobility Workx raised...more

Fitch, Even, Tabin & Flannery LLP

PTAB’s Structure and Funding Pass Due Process Muster

On October 13, in Mobility Workx v. Unified Patents, LLC, the Federal Circuit rejected a series of due process challenges to the structure of the Patent Trial and Appeal Board (PTAB), leaving the PTAB to continue with...more

Sterne, Kessler, Goldstein & Fox P.L.L.C.

PTAB Strategies and Insights - October 2021: Potential Pecuniary Interest In Instituting More AIA Proceedings Not Enough To...

We previously published an article discussing patent owner’s due process challenges based on alleged pecuniary interests of the Office and Administrative Patent Judges instituting cases to meet production goals and increase...more

Sterne, Kessler, Goldstein & Fox P.L.L.C.

PTAB Strategies and Insights - October 2021

The PTAB Strategies and Insights newsletter provides timely updates and insights into how best to handle proceedings at the USPTO. It is designed to increase return on investment for all stakeholders looking at the entire...more

Knobbe Martens

Federal Circuit Holds That the PTAB Does Not Have an Impermissible Incentive to Institute IPRs

Knobbe Martens on

MOBILITY WORKX, LLC v. UNIFIED PATENTS, LLC Before Newman, Schall, and Dyk. Appeal from the Patent Trial and Appeal Board. Summary: Fee-funded structure of AIA review proceedings does not violate due process....more

Morgan Lewis

Government Arguments Potentially Open Constitutional Can of Worms Regarding PTAB Appointments

Morgan Lewis on

In response to arguments made by the US government in an appeal pending before the US Supreme Court, members of Congress requested an investigation into the adequacy of due process afforded to Patent Trial and Appeal Board...more

Foley & Lardner LLP

Reading Arthrex’s Tea Leaves – Three Exchanges at the Oral Argument That May Hint at the Fate of Patent Judges

Foley & Lardner LLP on

The oral argument in the combined Arthrex cases was held on March 1, 2021. While the parties argued what they considered to be the key issues in their merits briefing, the oral argument provided insight into how the justices...more

McDonnell Boehnen Hulbert & Berghoff LLP

Appellants Raise Due Process Issues in New Vision Gaming and Development v. SG Gaming

Ever since institution of the post-grant review proceedings enacted under the Leahy-Smith America Invents Act were implemented by the U.S. Patent and Trademark Office (through the newly constituted Patent Trial and Appeal...more

WilmerHale

D.C. Circuit Forfeiture Holding Highlights Importance of Involving Litigation Counsel in the Early Stages of Administrative Agency...

WilmerHale on

On February 26, 2021, in Springsteen-Abbott v. Securities and Exchange Commission, a panel of the U.S. Court of Appeals for the D.C. Circuit held that a petitioner challenging sanctions imposed by the Financial Institutions...more

McDonnell Boehnen Hulbert & Berghoff LLP

U.S. v. Arthrex: Supreme Court Oral Argument

The Supreme Court heard argument on Monday in U.S. v. Arthrex, involving the question of whether appointment of Administrative Patent Judges (APJs) and their authority under the Leahy-Smith America Invents Act violates the...more

Foley & Lardner LLP

In Arthrex Reply Brief, Government Reiterates and Stands Firm

Foley & Lardner LLP on

Smith & Nephew and the United States filed their reply briefs on January 22. In its reply brief, the United States rebuts many of the positions taken by Arthrex in its initial merits brief. While Smith & Nephew, in its reply,...more

Sterne, Kessler, Goldstein & Fox P.L.L.C.

Federal Circuit Appeals from the PTAB and ITC: Summaries of Key 2020 Decisions

[co-author: Kathleen Wills] Last year, the global COVID-19 pandemic created unprecedented challenges for American courts. By making several changes, however, the U.S. Court of Appeals for the Federal Circuit was able to...more

Sterne, Kessler, Goldstein & Fox P.L.L.C.

PTAB Strategies and Insights - August 2020: Appeals Raise Constitutional Challenge to PTAB Fee and Compensation Structure

Appellants in New Vision Gaming & Development v. SC Gaming, Inc. f/k/a Bally Gaming, Inc. and Mobility Workx, LLC v. Unified Patents, LLC challenge the constitutionality of the administrative patent judge (APJ) incentive...more

McDonnell Boehnen Hulbert & Berghoff LLP

Arthrex Files Certiorari Petition in Arthrex case (Second Petition)

Arthrex recently filed a(nother) certiorari petition with the Supreme Court, this time in Arthrex, Inc. v. Smith & Nephew, Inc., which has also been the subject of petitions from the U.S. government and Smith & Nephew.  (This...more

Sterne, Kessler, Goldstein & Fox P.L.L.C.

2019 PTAB Year in Review: Analysis & Trends: Challenges to the Constitutionality of the Patent Trial and Appeal Board

Since the Patent Trial and Appeal Board’s inception, it has faced questions regarding its constitutionality. This past year was no different. In 2019, aggrieved patent owners raised numerous constitutional challenges...more

Dechert LLP

Tenth Circuit Court of Appeals Finds SEC’s Process for Designating Administrative Law Judges to be Defective, Causing Split with...

Dechert LLP on

The U.S. Court of Appeals for the Tenth Circuit on December 27, 2016, in Bandimere v. SEC, found the Administrative Law Judges (ALJs) used by the U.S. Securities and Exchange Commission (SEC) to hear its administrative...more

Burr & Forman

Tilton Tilts at SEC Enforcement, Again

Burr & Forman on

Having lost her initial suit (and appeal) to enjoin an SEC administrative enforcement action against her, the so-called “diva of distressed,” Lynn Tilton recently filed another lawsuit trying to halt her upcoming October 24...more

Cadwalader, Wickersham & Taft LLP

The SEC Retains its House Advantage During Administrative Proceedings

Amendments to the Rules of Practice Do Little to Address Criticism that the Deck is Stacked - Facing pressure from industry practitioners and in the wake of constitutional challenges in multiple jurisdictions, the...more

Carlton Fields

Supreme Court Declines to Review Constitutionality of SEC In-House Court

Carlton Fields on

The SEC’s increased use of its own "home court" for enforcement proceedings has triggered constitutional challenges to SEC administrative proceedings (APs). See "Defendants Challenge SEC’s Increased Use of Administrative...more

Burr & Forman

SEC ALJ Slams Bebo; Summarily Denies ConLaw Challenge

Burr & Forman on

Laurie Bebo, CEO of Assisted Living Concepts, initially got some sympathetic words from the U.S. District Judge who felt constrained to turn away her constitutional challenge to the SEC’s administrative forum: The Court...more

Morgan Lewis

Tweaking the “Home Court” Rules for SEC Administrative Proceedings

Morgan Lewis on

SEC proposes modest amendments to AP process to enhance efficiency and address concerns regarding fairness. In an effort to enhance the efficiency of its processes in administrative proceedings (APs) and bolster its...more

Burr & Forman

SEC ALJ Dismisses Case: Inside-Info Trades, But No Tipper Benefit

Burr & Forman on

An SEC administrative law judge (“ALJ”) found that former Wells Fargo trader Joseph Ruggieri traded on material nonpublic information tipped him by former analyst Greg Bolan, but dismissed the insider-trading charges against...more

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