In Re Boloro Global Ltd., No. 19-2349 (Fed. Cir. 2020)Annotate this Case
The Patent Trial and Appeal Board, in an ex parte appeal, affirmed an examiner’s rejection of claims in Boloro’s patent applications. Boloro moved to vacate. The Director of the Patent and Trademark Office acknowledged that the administrative patent judges (APJs) were not constitutionally appointed at the time of the Board’s final decision. The Federal Circuit has previously held that the appropriate remedy for such a constitutional violation was to vacate the Board’s decision and to remand for reassignment to a different panel of APJs for a new hearing and decision. The Director urges that the same remedy should not be extended to ex parte proceedings, like the Boloro proceedings, because the Director possesses “complete control over the initial examination” and could at any time before the Board proceedings have directed the issuance of Boloro’s patents but did not, consistent with the Board’s subsequent decisions. The Federal Circuit rejected that argument and remanded to the Board.