An International Guide to
Patent Case Management for Judges

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10.2.3 Constitutionality

The constitutionality of PTAB trial proceedings and, in particular, IPR, has been challenged on multiple occasions and grounds. Parties have argued that these proceedings authorize the taking of private property rights without due process and that the appointment of PTAB judges does not comport with constitutional separation-of-powers requirements. In 2018, the Supreme Court held that the IPR process does not violate Article III or the Seventh Amendment of the U.S. Constitution.77 More recently, the Supreme Court determined that the APJs sitting on PTAB panels had been appointed in violation of the Appointments Clause in Article II of the Constitution.78 To remedy this Constitutional violation, the Supreme Court rendered inoperative the portion of the governing statute79 that prevented the USPTO Director from reviewing the final IPR decisions of APJs and made clear that the Director “may review final PTAB decisions and, upon review, may issue decisions himself on behalf of the Board.”80 As the USPTO Director is appointed directly by the president, this “tailored solution” remedied the violation.