Duffy appointments argument deemed waived in DBC case

The CAFC noted:

DBC argues that regardless of the merits of the underlying rejection, the decision
of the Board must be vacated because two of the administrative patent judges on the
panel were appointed unconstitutionally.2 The government counters that DBC waived
this issue by failing to raise it either before the Board or in its opening brief in this
appeal.3 We agree with the government that DBC waived the issue by failing to raise it
before the Board.

The CAFC also said:

As evidenced by DBC’s
supplemental brief and its attachments, DBC was able to determine, based on the
appointment dates of the administrative patent judges in question, that they were
appointed by the Director and thus subject to an Appointments Clause challenge. Thus,
nothing prevented DBC from taking steps while this case was before the Board to
ascertain the appointment status of the administrative patent judges assigned to its
case. Even if DBC did not learn of the judges assigned to its panel until oral argument
or until a decision was issued, it still had an opportunity to challenge the composition of
the panel in a post-argument submission or in a motion for reconsideration. If DBC had
timely raised this issue before the Board, the Board could have evaluated and corrected
the alleged constitutional infirmity by providing DBC with a panel of administrative
patent judges appointed by the Secretary. Of course, the Board may not have
corrected the problem, or even acknowledged that the problem existed. But in that
case, DBC would have preserved its right to appeal the issue.

Much ado about nothing -->


Finally, DBC has not made any allegation of incompetence or other impropriety
regarding the administrative patent judges who heard its appeal, nor has it alleged that
these judges are somehow unqualified to serve in the position. Indeed, the Secretary,
acting under the new statute, has reappointed the administrative patent judges involved
in DBC’s appeal. (...) there is nothing to suggest that the Board would do anything other than
simply (and legitimately) assign
the case to the same panel. The fact that we have affirmed the merits of the Board’s
action in this case also speaks against our exercising discretion and needlessly
protracting the reexamination of the present patent.