Well, maybe I’ve overstating it. In a turn of events suspected by some, but nevertheless surprising, the CAFC has ruled that the judges of the PTAB are not appointed properly under the Appointments Clause of Article 2. As ‘principal officers,’ PTAB judges should be appointed by the President, and confirmed by the Senate. Presently, PTAB judges are appointed by the Secretary of Commerce. Two intrusive thoughts occur – how does this affect prior acts by the PTAB, and does this analysis apply to the TTAB as well.

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