Reply brief filed in Polaris v. Kingston — are APJ’s unconstitutionally appointed principal officers?

Polaris has now filed its reply brief in the pending appeal of Polaris Innovations Ltd. v. Kingston Technology Co., Inc. at the Federal Circuit. You can read the reply brief here:

Earlier briefs filed in this appeal are available here:

Appellant’s Principal Brief 

USPTO’s Intervenor Brief

Kingston Response Brief

This appeal should be pretty interesting to follow. It raises several interesting questions about whether APJ’s are constitutionally appointed principal officers, as well as how broad is the authority of the Director of the USPTO with respect to the Board — master and commander or just captain of the team.

The Reply Brief cites a forthcoming article: The AIA Through a Constitutional Lens, 26 Geo. Mason U. L. Rev. (forthcoming), manuscript at 45, available at

It has been a few years since I last checked; but, I believe it takes about four months for a case to come up for oral argument after the completion of briefing. So, look for the oral argument to take place near the end of 2019.

I was watching to see if footnote 6 from the Supreme Court’s decision in Brenner v. Manson would make its way into one of the briefs. It does not look like it did. Footnote 6 of Brenner v. Manson makes a comment about whether the then-Commissioner of the USPTO was bound by determinations of the Board of Patent Appeals and Interferences.  The footnote reads:

[6] We find no warrant for this curious limitation either in the statutory language or in the legislative history of § 1256. Nor do we find persuasive the circumstance that the Commissioner may not appeal adverse decisions of the Board of Appeals. 35 U. S. C. §§ 141, 142, and 145 (1964 ed.). As a member of the Board and the official responsible for selecting the membership of its panels, 35 U. S. C. § 7 (1964 ed.), the Commissioner may be appropriately considered as bound by Board determinations. No such consideration operates to prevent his seeking review of adverse decisions rendered by the CCPA.

See more comments from the oral argument of Brenner v. Manson at this previous post: [link].

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