Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights a merit panel’s recent request for supplemental briefing on the constitutionality of Title 5’s removal restrictions with respect to Administrative Patent Judges, predictions that Congress will pass legislation soon to cure the constitutional defect related to the appointment of Administrative Patent Judges, and a Forbes article provocatively entitled “How a Homeless Man Helped Cloudflare Counterattack a Bogus Patent Lawsuit.”

A group of attorneys at Cadwalader noted a recent order issued by the merits panel considering the appeal in Polaris Innovations Ltd. v. Kingston Technology Co., No. 2018-1768. The order requires the parties and the government (as intervenor) to file supplemental briefing addressing the following questions:

  1. what level of supervision and review distinguish a principal from an inferior officer;
  2. whether severing the application of Title 5’s removal restrictions with respect to APJs under 35 U.S.C. § 3(c) sufficiently remedies the alleged unconstitutional appointment at issue in these appeals;
  3. whether, and how, the remedy for an Appointments Clause violation differs when it stems from an unconstitutional removal restriction, rather than an unconstitutional appointment itself; and
  4. whether severing the application of Title 5’s removal restrictions with respect to APJs under 35 U.S.C. § 3(c) obviates the need to vacate and remand for a new hearing, given the Supreme Court’s holdings on the retroactive application of constitutional rulings.

As explained by the Cadwalader attorneys, “[t]hese questions are significant considering the U.S. Court of Appeals of the Federal Circuit recently ruled in Arthrex Inc. v. Smith & Nephew Inc. that the current system to appoint APJs violated the Appointment Clause of the U.S. Constitution.” As they note, given that the order came after the decision in Arthrex, the panel appears “poised to revisit Arthrex to explore the constitutional implications of its holding.” On the other hand, the order is somewhat notable given that a panel of the court must follow prior panel decisions.

Jan Wolfe at Reuters reports that intellectual property attorneys believe that “Congress could pass legislation in the coming months to fix [the] constitutional defect in the structure of the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board identified in” Arthrex. According to Wolfe, they believe there is “broad, bipartisan support” for legislation.

John Greathouse filed an article with Forbes explaining how, when sued for patent infringement, “Cloudflare initiated Project Jengo . . . for the purposes of invalidating all of the patents held by the lawyers who sued them, not just those [patents] cited in the settlement offer.” As reported by Greathouse, Cloudflare’s General Counsel, Doug Kramer, explained that “one of the [Project Jengo] award recipients said that [receiving the award] made his day because he was homeless at the time he made the [prior art] submission and was researching in the library.”