There is an interesting case wending its way through the briefing process at the Federal Circuit, Polaris v. Kingston. In its opening brief Polaris asserts that APJ’s cannot extinguish patent rights via an IPR because they have not been appointed by the President and confirmed by the Senate.
The USPTO has intervened in the case. In its brief filed last week, the USPTO asserts that APJ’s are “Inferior Officers whose appointment Congress permissibly vested in the Secretary of Commerce.”
It sounds as if this will be an interesting case to follow.
Polaris’ opening brief is available here:
The USPTO’s intervenor brief is available here: