St. Louis patent litigator Doug Robinson spoke to Ian Lopez of Bloomberg Law about VirnetX Inc. v. Cisco Systems, in which the Federal Circuit declined to rehear the appeal of an Inter Partes Reexamination. The court cited the case’s similarity to its October decision in Arthrex, which the court sent back to the PTAB due to factors involving the constitutionality of patent judges’ appointments.

While the Federal Circuit’s Arthrex decision involved only Inter Partes Reviews, the Cisco-VirnetX ruling effectively shows that Arthrex’s reach is now growing.

It shows “Arthrex applies to all actions by the administrative patent judges at the PTAB,” says Robinson, “including Inter Partes Reexaminations, as we see here.”

In Arthrex, the Federal Circuit held that the power PTAB judges possessed in Inter Partes Reviews far outpaced the amount of oversight they had from the USPTO Director, resulting in an unconstitutional balance of power. The USPTO responded by removing some of the judges’ job protections.

In the Cisco-VirnetX case, the USPTO tried to argue that its Director held the power to make unilateral decisions regarding patent claims, therefore demonstrating substantial oversight, but the Federal Circuit disagreed.

Beyond the newsworthy headline of holding Inter Partes Reexamination unconstitutional, the ruling also vacates the invalidation of a VirnetX patent that Apple had been ordered to pay hundreds of millions of dollars for infringing.

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