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Supreme Court to Consider Whether PTAB Judges Are Unconstitutionally Appointed

The Supreme Court of the United States agreed to consider whether Patent Trial and Appeal Board (PTAB) judges are unconstitutionally appointed. The United States of America v. Arthrex, Inc., Case Nos. 19-1452, -1458, -1459 (Supr. Ct. October 13, 2020) (certiorari granted). In what quickly turned into a controversial decision, the US Court of Appeals for the Federal Circuit held the appointment of administrative patent judges at the PTAB unconstitutional. Arthrex, Inc. v. Smith & Nephew, Inc.  The Federal Circuit found that PTAB judges were appointed as if they were “inferior officers” but vested by the PTAB with authority that is reserved for Senate-confirmed “principal officers.” Smith & Nephew, Arthrex and the United States of America petitioned the Supreme Court for review of the decision. The questions presented are: Whether, for purposes of the Appointments Clause, US Const. Art. II, § 2, Cl. 2, administrative patent judges of the US Patent and...

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Computer Fraud and Abuse Act Set for Initial Supreme Court Review

In the wake of a 5-4 circuit court split, the Supreme Court of the United States granted certiorari to review the 1986 Computer Fraud and Abuse Act (CFAA) and specifically whether a person who is authorized to access information on a computer for certain purposes violates the CFAA if he accesses the same information for an improper purpose. Van Buren v. United States, Case No. 19-783 (Supr. Ct., Apr. 20, 2020) (certiorari granted). After a criminal conviction under the CFAA, Van Buren, a Georgia police officer, unsuccessfully appealed to the US Court of Appeals for the 11th Circuit, arguing that his act of accessing information on a database for an improper purpose did not “exceed authorized access” under the CFAA. United States v. Van Buren, 940 F.3d 1192 (11th Cir. 2019). The First, Fifth and Seventh Circuits have agreed with the 11th Circuit’s interpretation and held that accessing a computer for an improper purpose violates the CFAA, even if the person...

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