Oral Argument of the Day: Polaris v. Kingston

Following on the heels of the Federal Circuit decision in Arthrex last week by Judges Moore, Chen and Reyna, a new panel consisting of Judges Reyna, Wallach, and Hughes heard the oral argument in Polaris v. Kingston this morning. This oral argument was dedicated entirely to the issue of the constitutionality of PTAB judges and the effect of the Arthrex decision.

The entire oral argument is worth a listen; however, here are some points of note:

  1. Polaris suggested that the court’s correction of the statute that was implemented in Arthrex is insufficient and recommended the nuclear option — invalidate the statute; then let Congress fix it.
  2. The government needs to check in with various agencies as well as the Solicitor General before deciding whether to request en banc review. It sounded as if the government might not reach a decision on whether to request en banc review for another 42 days.
  3. The lack of an issued mandate in Arthrex is causing procedural obstacles. Polaris v. Kingston is perhaps a better vehicle for en banc review given the issues at play; but, the Polaris court can’t apply Arthrex until the mandate issues. So, the timing of a decision in Polaris will be tricky to keep Arthrex and Polaris on relatively parallel tracks for en banc review requests. (Meanwhile, in Customedia v. Dish, decided last week, the CAFC applied Arthrex — prior to a mandate issuing in Arthrex !?!)
  4. There are lingering due process issues with respect to the Director’s instruments of persuasion for controlling Board members.
  5. This constitutionality challenge has been raised once before prior to the Arthrex case. Apparently, in one of the Trading Technologies cases, the issue was raised and the Federal Circuit issued a Rule 36 Judgment. I believe that panel was Judges Newman, Dyk, and Wallach.
  6. The government believes that it was not permitted to use a statutory right when the government was not given a chance to intervene in the Uniloc case that was remanded to the Board last week in view of Arthrex:

You can listen to the oral argument here:

Updated 11/6/19:

Here is the discussion of non-severability:

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