Boloro Tells Federal Circuit Arthrex Applies to Ex Parte Appeals As Well

Ex parte Boloro is a fascinating case placing into question the constitutionality of the PTAB’s review duties for ex parte examination. Full disclosure : Oblon represents the Applicant.  In this case, the Applicant is asking the CAFC to extend the 1991 Supreme Court Freytag decision, interpreting the Appointment Clause of Article II, Section 2 of the U.S. constitution, to ex parte appeals as well.  The CAFC recently relied upon the Freytag decision in Arthrex (2019) and VirnetX (2020) and held that the PTAB’s review duties were unconstitutional in the context of inter partes reviews and inter partes reexaminations, respectively.  If the CAFC agrees, Applicants who are dissatisfied with their appeals of an examiner’s rejection and raised the issue with the CAFC by their opening brief may get a second chance if the administrative patent judges involved in the appeal were not appointed in compliance with the Appointment Clause.

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