In Ciena Corp. v. Oyster Optics, LLC, [2019-2117] (May 5, 2020), the Federal Circuit affirmed the PTAB final written decision that Ciena had failed to demonstrate by a preponderance of the evidence that any of the challenged claims were un-patentable.  On appeal, Ciena argued that, under Arthrex, the Board’s decision must be vacated and remanded for a new hearing before a differently constituted panel because the members of the Board panel that issued the decision were not appointed in compliance with the Appointments Clause. The Federal Circuit said that problem with Ciena’s request is that, unlike the patent owner in Arthrex, Ciena requested that the Board adjudicate its petition. It, thus, affirmatively sought a ruling from the Board members, regardless of how they were appointed. The Federal Circuit said that Ciena was content to have the assigned Board judges adjudicate its invalidity challenges until the Board ruled against it. Under those circumstances, the Federal Circuit found that Ciena has forfeited its Appointments Clause challenge.

Congress’ carelessness in creating the PTAB continues to vex the PTAB and the Courts. The Federal Circuit’s quick fix, although understandable, has not helped matters.