Patent Trial and Appeal Board judges are unconstitutionally appointed, and granting the Patent and Trademark Office director more discretion to review PTAB decisions would cure the problem, the Supreme Court ruled Monday in U.S. v. Arthrex (19-1434). The Constitution “forbids the enforcement of statutory restrictions on the Director that insulate the decisions of [administrative patent judges] APJs from his direction and supervision,” Chief Justice John Roberts wrote for the majority. “To be clear, the Director need not review every decision of the PTAB. What matters is that the Director have the discretion to review decisions rendered by APJs.” Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett joined Roberts in the majority opinion on parts I and II. Alito, Kavanaugh and Barrett joined Roberts for an opinion on part III. Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, Clarence Thomas and Gorsuch dissented to varying degrees. Gorsuch filed an opinion concurring in part and dissenting in part. Breyer filed an opinion concurring in the judgment in part and dissenting in part, with Sotomayor and Kagan joining. Thomas filed a dissenting opinion with Breyer, Sotomayor and Kagan joining for parts I and II. The high court ruled the appointments unconstitutional on the question of whether the authority of APJs to “issue decisions on behalf of the Executive Branch is consistent with the Appointments Clause of the Constitution.” Arthrex argued “APJs were principal officers who must be appointed by the President with the advice and consent of the Senate, and that their appointment by the Secretary of Commerce was therefore unconstitutional,” according to the filing. Computer & Communications Industry Association Patent Counsel Josh Landau disagreed that “PTAB judges were not already subject to sufficient supervision by the Director” but welcomed the court’s “simple, common-sense revision that provides for Director review.” DOJ and an attorney for the company didn’t comment.
Karl Herchenroeder
Karl Herchenroeder, Associate Editor, is a technology policy journalist for publications including Communications Daily. Born in Rockville, Maryland, he joined the Warren Communications News staff in 2018. He began his journalism career in 2012 at the Aspen Times in Aspen, Colorado, where he covered city government. After that, he covered the nuclear industry for ExchangeMonitor in Washington. You can follow Herchenroeder on Twitter: @karlherk
Senate Commerce Committee Chair Maria Cantwell, D-Wash., and ranking member Roger Wicker, R-Miss., are having staff-level discussions about a legislative response to the Supreme Court striking down FTC Act Section 13(b) authority (see 2104260065), they told us. Cantwell previously said she wants to move quickly on legislation to bolster the agency’s authority. The committee has bill language, but “I don’t know when we’re rolling it out,” Cantwell told us. Wicker confirmed the staff discussions.
Senate Republicans are optimistic about working with new FTC Chair Lina Khan (see 2106160056) on antitrust and other issues, they said in interviews Thursday. Democrats also welcomed the appointment, with Sen. Elizabeth Warren, Mass., saying the agency needs to take advantage of its 3-2 Democratic majority before Commissioner Rohit Chopra leaves for the Consumer Financial Protection Bureau (see 2101190019). See here for news on Khan ascending Tuesday to chair.
Senate Commerce Committee ranking member Roger Wicker, R-Miss., plans to introduce legislation to regulate online platforms like common carriers, he told us Monday. Citing a recent opinion from Supreme Court Justice Clarence Thomas advocating for such (see 2104090046), Wicker hoped to introduce the bill this week.
The Senate plans to vote Tuesday on final passage of the Endless Frontier Act (see 2105270082) and several potential amendments, an aide for Senate Majority Leader Chuck Schumer, D-N.Y., told us Friday. The Senate could consider a manager’s amendment, which might open the door to a host of additional provisions, per an aide for co-sponsor Sen. Todd Young, R-Ind. Some 30 senators are attempting to attach provisions to the manager’s package, lobbyists said.
An EU-U.S. trade and technology council could help Europeans learn from the U.S. about issues like 5G network deployment, said Thibaut Kleiner, European Commission policy strategy and international affairs director. EU Competition Commissioner Margrethe Vestager said Wednesday she hopes to announce such a council in mid-June, when President Joe Biden visits Brussels. The council could be a “good tool for delivery,” not just be a “talk shop,” Kleiner said during a German Marshall Fund livestream Thursday. The two sides will likely prioritize existential issues like climate change over marketplace issues, said ex-FCC Chairman Tom Wheeler, now a Brookings Institution visiting fellow.
The Supreme Court narrowed the scope of what's a computer crime under the Computer Fraud and Abuse Act, in Van Buren v. U.S., (see 2011300067). By 6-3 Thursday, the court overturned a 2017 conviction against former Georgia police officer Nathan Van Buren. He used his police computer to access a law enforcement database to obtain data about a license plate number owned by a potential undercover officer, in exchange for thousands of dollars. In an opinion delivered by Justice Amy Coney Barrett, the majority ruled Van Buren didn’t violate CFAA: “This provision covers those who obtain information from particular areas in the computer -- such as files, folders, or databases -- to which their computer access does not extend. It does not cover those who, like Van Buren, have improper motives for obtaining information that is otherwise available to them.” Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito dissented. Van Buren “had permission to retrieve license-plate information from a government database, but only for law enforcement purposes,” Thomas wrote. Van Buren exceeded “authorized access” in violation of the statute, Thomas added. Van Buren’s attorney Jeffrey Fisher emailed: “We’re very pleased with the Court’s opinion and are happy that the CFAA is now restricted to its proper reach.” DOJ didn't comment. SCOTUS recognized "the terribly written CFAA crossed the line by criminalizing everyday activities like using your work computer to read the news or send personal emails,” said Sen. Ron Wyden, D-Ore., in a statement. “Today's ruling helps rectify the damage caused by that reactionary law.” The American Civil Liberties Union also backed the majority opinion.
The National Institute of Standards and Technology should tread lightly defining “critical software” and avoid disincentivizing innovation, officials from Microsoft, Linux, BSA|The Software Alliance and cloud providers told NIST Wednesday. President Joe Biden’s cybersecurity executive order directs NIST to publish a definition by June 26 (see 2105240072).
Congress should enact federal privacy legislation that would give internet users the right to access and delete personal information, FTC acting Chairwoman Rebecca Kelly Slaughter wrote in a recent letter to Sen. Amy Klobuchar, D-Minn. An aide for Klobuchar, who supports access and deletion rights, said Tuesday the Senate Antitrust Subcommittee chair will continue pushing for such legislation.
The House Consumer Protection Subcommittee passed by voice vote Thursday legislation to restore FTC Section 13(b) authority (see 2104280028), despite Republican opposition. The Consumer Protection and Relief Act (HR-2668), from Rep. Tony Cardenas, D-Calif., advanced to the full committee. House Commerce Committee ranking member Cathy McMorris Rodgers, R-Wash., and subcommittee ranking member Gus Bilirakis, R-Fla., criticized a “rushed” legislative process. They cited lack of commissioner input at the bill’s legislative hearing and partial responses from DOJ (see 2105170040). Commerce Chairman Frank Pallone, D-N.J., claimed Republicans didn’t offer any potential changes until Thursday morning. Republicans’ core concern is the potential for lack of due process and proper analysis, said Rodgers. Republicans offered amendments that were ultimately withdrawn. Subcommittee Chair Jan Schakowsky, D-Ill., committed to working with Republicans on provisions including an amendment from Bilirakis that would alter the statute of limitations. Rushing the bill to committee reflects a “broken process,” McMorris Rodgers said. The legislation is “urgently needed,” said Schakowsky: Nothing in the FTC Act can replace authorities gutted by the Supreme Court. Bilirakis “sincerely” appreciates introduction of the bill because it attempts to address a gap in consumer protection, but he accused the majority of wanting to ram this through without bipartisan input. Congress needs to restore FTC authority, said Cardenas.