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Lost and “Found”: Fourth Circuit Interpretation of Discovery in Support of Foreign Litigation Opens Circuit Split

by Christopher M. Bruno | Jun 23, 2022 | Patents

The US Court of Appeals for the Fourth Circuit held that a corporation that is not physically present in a district is not “found” in the district for purposes of the federal statute that authorizes courts to order discovery for use in a foreign tribunal. In re Eli Lilly and Co., Case No. 22-1094 (4th Cir. 2022) (Niemeyer, Diaz, JJ.; Floyd, Sr. J.) The Court rejected the approach of the Second Circuit, which previously had held that a district court’s power to order discovery under 28 USC § 1782 was coextensive with the minimum contacts inquiry of specific jurisdiction.

After acquiring a patent portfolio related to the psoriasis drug Taltz, Novartis AG sued Eli Lilly for patent infringement in several European courts. Eli Lilly requested discovery from Novartis in the Eastern District of Virginia under § 1782, which authorizes a district court “of the district in which a person resides or is found” to “order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal.” Novartis is based in Switzerland and has no offices or employees in the Eastern District of Virginia.

Following a magistrate judge’s grant of Eli Lilly’s ex parte application for a discovery subpoena, the district court vacated that order. The Fourth Circuit affirmed, substantially echoing the district court’s reasoning.

There was no dispute that Novartis did not “reside” in the district; the only issue was whether Novartis could be “found” there. The Fourth Circuit considered the plain meaning of “found,” Supreme Court precedent interpreting similar statutory language, and the legislative history of the statute, and held “that a corporation is found where it is physically present by its officers and agents carrying on the corporation’s business.”

The Fourth Circuit rejected Eli Lilly’s counterargument that the satisfaction of specific jurisdiction requirements was sufficient for a corporation to be “found” in a district, including Eli Lilly’s reliance on the 2019 Second Circuit decision in In re del Valle Ruiz, which held that a corporation was “found” wherever it could be subject to specific jurisdiction. The Fourth Circuit concluded that In re del Valle Ruiz failed to give “found” its plain meaning, incorrectly ignored Supreme Court precedent and did not give appropriate weight to the legislative history of § 1782.

Even if the Fourth Circuit had disagreed with the district court’s interpretation of § 1782, the Court would still have affirmed based on the deferential abuse-of-discretion standard. Because § 1782 permits, but does not require, an order of discovery, the Court found that the district court’s determination that to “request[ ] [ ] a substantial volume of data and materials located abroad [to] be brought into the United States for subsequent use in proceedings abroad, [would be] a nonsensical result” was well reasoned.

With this decision, the Fourth Circuit broke with the Second Circuit and created a circuit split in the interpretation of § 1782.

Ian Howard, a summer associate in the Washington, DC, office, also contributed [...]

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Faked It? Your Contract Won’t Make It

by Paul Devinsky | Jun 16, 2022 | Trade Secrets

The US Court of Appeals for the Seventh Circuit affirmed a district court ruling denying a defendant’s motion to enforce an arbitration clause in a software license agreement that the defendant’s employee entered into using a fake company name at the defendant’s direction. CCC Intelligent Sols. Inc. v. Tractable Inc., Case No. 19-1997 (7th Cir. June 6, 2022) (Easterbrook, Brennan, St. Eve, JJ.)

CCC Intelligent Solutions and Tractable are competitors that provide customers, including insurance companies, with cost estimates to repair damaged cars and trucks. Both companies supply software that applies algorithms to data generated by body shops and other repair centers. CCC provides the software to customers under terms in a license agreement. The license prohibits disassembling the software code or incorporating it into other software, forbids assignment of the license without CCC’s consent and includes a representation that the customer is not acting as an agent of any third party. The license also includes an arbitration clause. A Tractable employee obtained a license to CCC’s software under a fake business name, “JA Appraisal,” using a false mailing address and email address. The employee gave the software to Tractable, which disassembled the software and incorporated CCC’s proprietary algorithms into its own product. CCC became aware of Tractable’s improper use of its software and filed a lawsuit in the district court.

Tractable moved to compel arbitration under the terms of the agreement, arguing that JA Appraisal was its agent and that Tractable was therefore a party to the license agreement. The district court denied Tractable’s motion. The district court found that a reasonable jury could find that CCC did not intend to grant Tractable a license, and that CCC could have reasonably believed it was doing business with JA Appraisal based on JA Appraisal’s representations and the agreement’s non-assignment provisions. Tractable appealed.

The Seventh Circuit addressed whether Tractable was a party to the contract. The Court first assessed whether it was publicly known that Tractable did business under the JA Appraisal name. The Court found (and Tractable’s counsel admitted) that it was not possible for CCC to discover that Tractable used that name. Tractable, based on a comment to § 163 of the Restatement of Contracts, argued that § 163 provides that a party’s acceptance of a contract is not effective if it was induced by a misrepresentation of an essential term of the contract by the other party. The cited comment provides an exception to this rule, stating that “the mere fact that a party is deceived as to the identity of the other party” does not bring a case within the auspices of § 163 “unless it affects the very nature of the contract.”

The Seventh Circuit rejected Tractable’s reliance on the comment. The Court found that JA Appraisal’s identity affected the very nature of the contract and therefore the exception recited in the comment did not apply. The Court explained that the exception to § 163 covers situations when a party failed to know the “full truth” [...]

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Can’t Hide Behind Minor Clerical Error to Escape Willful Infringement Verdict

by Cecilia Choy, Ph.D. | Jun 9, 2022 | Patents

The US Court of Appeals for the Federal Circuit affirmed a district court decision correcting a clerical error in a claim. Pavo Solutions LLC v. Kingston Technology Company, Inc., Case Nos. 21-1834 (Fed. Cir. June 3, 2022) (Lourie, Prost, Chen, JJ.)

The Pavo patent is generally directed to a “flash memory apparatus having a single body type rotary cover.” CATR Co., later substituted by Pavo, sued Kingston for infringing the Pavo patent. Supported by the patent specification and prosecution, the district court judicially corrected the claim language in its claim construction order to read “pivoting the cover with respect to the flash memory main body,” not “pivoting the case with respect to the flash memory main body” (change emphasized). Pavo’s damages expert, Bergman, presented a profit-based model of reasonable royalty damages, relying on an earlier settlement agreement between CATR and IPMedia to arrive at a profit split of 18.75%, amounting to 40 cents/unit for Kingston. The jury returned a verdict of willful infringement and awarded Pavo a 20% reasonable royalty.

Judicial Correction

The Federal Circuit addressed and affirmed three issues on appeal, the first being that the district court approximately corrected an obvious minor clerical error in the claims. Correction is appropriate “only if (1) the correction is not subject to reasonable debate based on consideration of the claim language and the specification and (2) the prosecution history does not suggest a different interpretation of the claims.” In deciding whether a particular correction is appropriate, a court “must consider how a potential correction would impact the scope of a claim and if the inventor is entitled to the resulting claim scope based on the written description of the patent.”

The Federal Circuit decided that the error was clear from the full context of the claim language, supported by the specification, and did not broaden the claim scope. Additionally, the correction was not subject to reasonable debate. Judicial correction “is merely giving to it the meaning which was intended by the applicant and understood by the examiner.” Kingston’s alternative correction would just reverse the order in which the structural components appear in the claim.

The prosecution history also did not suggest a different interpretation of the claim. The applicant and the examiner consistently characterized the claims as describing pivoting the case within the cover, which both the Patent Trial & Appeal Board (Board) and the court recognized. Each reviewing body understood the nature and scope of the invention consistent with correcting “case” to “cover.” Kingston argued that the Board denied the applicant’s request to correct the language, but the denial was on procedural grounds.

Willfulness

Second, the Federal Circuit determined that Kingston could form requisite intent to support a willful infringement verdict despite its arguments that it reasonably relied on not infringing the claims as originally written, and it could not anticipate that a court would later correct the claims. However, “reliance on an obvious minor clerical error in the claim language is not a defense to willful infringement.” By definition, [...]

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Drink Up, but Not with Lehman Brand

by Paul Devinsky | Jun 9, 2022 | Trademarks

In the context of an opposition proceeding, the US Court of Appeals for the Federal Circuit upheld a Trademark Trial & Appeal Board (Board) refusal to register a trademark based on likelihood of confusion with a famous but expired mark, notwithstanding the applicant’s assertion of abandonment of the mark by the original registrant. Tiger Lily Ventures Ltd. v. Barclays Capital Inc., Case Nos. 21-1107;- 1228 (Fed. Cir. June 1, 2022) (Lourie, Bryson, Prost, JJ.)

Tiger Lily sought to register the word mark LEHMAN BROTHERS for beer and spirits and for bar services and restaurant services. Barclays, whose Lehman Brothers marks had expired, opposed the applications based on likelihood of confusion. Tiger Lily argued that Barclays had abandoned the mark and filed an opposition to Barclays’ application to register the work mark LEHMAN BROTHERS. The Board sustained Barclays’ oppositions on the grounds of likelihood of confusion and dismissed Tiger Lily’s opposition. Tiger Lily appealed.

Tiger Lily challenged the Board’s decision, arguing that the Board erred in its determination that Barclays did not abandon its rights in the LEHMAN BROTHERS mark and, relatedly, that Barclays established priority with respect to the LEHMAN BROTHERS mark in its own application. Tiger Lily also argued that the Board erred in finding that its proposed mark for beer and spirits and its proposed mark for bar services and restaurant services would cause a likelihood of confusion with Barclays’ LEHMAN BROTHERS mark.

Addressing the issue of abandonment, the Federal Circuit explained that “there are two elements to a claim for abandonment: (1) nonuse; and (2) intent not to resume use,” and “even limited use can be sufficient to avoid a finding that use of a mark has been ‘discontinued.’” The Court noted that Tiger Lily acknowledged that Barclays had used the mark “continuously in the course of winding up the affairs of at least one Lehman Brothers affiliated company” and thus failed to prove nonuse. Whether Lehman Brothers would exist after bankruptcy proceedings ended was immaterial.

On the issue of likelihood of confusion and the DuPont factors, the Federal Circuit found that “because the LEHMAN BROTHERS mark has achieved a high degree of fame, it is afforded a broad scope of protection.” Tiger Lily attempted to draw a distinction between “consumer recognition” as compared with “goodwill” as a factor and argued that it was actually trying to trade on the “bad will” associated with the mark. The Court found “no legal support for [this] subtle distinction.” The Court concluded that “Tiger Lily’s attempts to capitalize on the fame of the LEHMAN BROTHERS mark weighs in favor of finding a likelihood of confusion,” and that the Board’s findings on the remaining factors were supported by substantial evidence.

Co-Authorship ≠ Co-Inventorship but Can Be Supportive of Inventive Contribution

by Cecilia Choy, Ph.D. | Jun 9, 2022 | Patents

The US Court of Appeals for the Federal Circuit vacated and remanded a Patent Trial & Appeal Board (Board) decision because it failed to resolve fundamental testimonial conflict relating to inventive contribution and complete the Duncan Parking analysis. Google LLC v. IPA Technologies Inc., Case Nos. 21-1179; -1180; -1185 (Fed. Cir. May 19, 2022) (Dyk, Schall, Taranto, JJ.)

Under Duncan Parking, analyzing whether a reference patent is “by another” requires the following three steps:

Determining what portions were relied on as prior art to anticipate the claim limitations at issue
Evaluating the degree to which those portions were conceived by another
Deciding whether that other person’s contribution is significant enough to render them a joint inventor of the applied portions of the reference patent.

SRI International filed two patent applications in 1999 related to the software-based Open Agent Architecture (OAA) and listed Martin and Cheyer as the inventors. In March 1998, an academic paper describing the OAA project was published and named these inventors and Moran as co-authors (Martin reference). During prosecution, the examiner identified the Martin reference as prior art and rejected the claims. SRI asserted that the Martin reference was not prior art because it was made by the same inventive entity as the patents. The patents were granted and assigned to IPA.

Google petitioned the Board for inter partes review of the patent claims. Google argued obviousness in view of the Martin reference and asserted that since the authors of the Martin reference (Martin, Cheyer, Moran) were not the same as the named inventive entity (Martin, Cheyer), the Martin reference was prior art “by others.” The Board instituted review but decided that Google did not meet its burden to provide sufficient support in establishing the correct inventive entity of the claimed subject matter and concluded that Moran’s testimony was insufficiently corroborated. Google appealed.

First, the Federal Circuit discussed the differences between burdens of persuasion and production and responded to Google’s argument that the Board improperly imposed a burden of proof. The Court found no error in the Board requiring Google to establish that the Martin reference was prior art “by another” by showing that Moran made a significant-enough contribution to qualify as a joint inventor on the relevant portions of the Martin reference.

Second, the Federal Circuit explained that the issue in this case was not the lack of corroboration for Moran’s testimony but rather whether his testimony should be credited over Cheyer and Martin’s conflicting testimony. The Court explained that to address joint inventorship under Duncan Parking, Moran “must have made an inventive contribution to the portions of the reference relied on and relevant to establishing obviousness.” Moran’s testimony could support co-inventorship of portions in the Martin reference relied on by Google and relevant to the challenged claims.

The Federal Circuit explained that although most corroboration cases involve issued patents, corroboration is also required for testimony that an individual is an inventor of a potentially invalidating, non-patent prior art reference. The record contained “more [...]

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“Self-Similar” More Objective Than One Might Think

by Art Dykhuis | Jun 9, 2022 | Patents

The US Court of Appeals for the Federal Circuit affirmed a Patent Trial & Appeal Board (Board) decision holding that the term “self-similar” was not indefinite and denying leave to file a sanctions motion. ClearOne, Inc. v. Shure Acquisition Holdings, Case No. 2021-1517 (Fed. Cir. June 1, 2022) (Moore, Newman, Hughes, JJ.)

Shure owns a patent relating to arrays of microphones and housings that can be fitted to a drop ceiling grid, providing “equivalent beamwidth performance at any given look angle.” During inter partes review, Shure moved to amend the claims to add a new claim reciting microphones “arranged in a self-similar configuration.” The Board granted that motion, holding that “self-similar” was not indefinite. The Board denied ClearOne’s motion for rehearing and separate motion for sanctions alleging a failure to disclose prior that Shure had asserted in a post-grant review initiated against one of ClearOne’s patents.

The Federal Circuit first reviewed the Board’s indefiniteness holding. Since “[d]efiniteness is a matter of claim construction,” the Court applied de novo review while reviewing underlying factual determinations for substantial evidence. The Court held that the intrinsic record alone supported the Board’s definiteness finding because it provided the scope of “self-similar” with reasonable certainty. The specification disclosed microphones arranged in a “self-similar or repeating configuration”; a “fractal, or self-similar, configuration surrounding a central microphone”; and arrangements in circular or other repeating shapes, such as “ovals, squares, rectangles, triangles, pentagons, or other polygons.” Thus, “self-similar,” when read in view of the specification, informed skilled artisans about the scope of the invention with reasonable certainty.

The Federal Circuit rejected ClearOne’s argument that “self-similar or fractal-like” and “self-similar or repeating” distinguished self-similar from other types of patterns, holding that in context, it was clear that the phrases equated, not juxtaposed, self-similar with those patterns. Reviewing the extrinsic evidence, the Court also rejected ClearOne’s arguments premised upon “a series of rhetorical questions to show [ClearOne’s] varying interpretations of the self-similar term.” The possibility of varying interpretations, the Court held, “does not render [a term] indefinite,” as otherwise nearly every term would be indefinite if susceptible to alternative plausible constructions.

The Federal Circuit also rejected ClearOne’s motion for leave to seek sanctions. The Board held that allowing the sanctions motion would lead to an inefficient proceeding because the sanctions motion raised the same arguments as the denied request for rehearing, a ruling that ClearOne conceded on appeal. The Board also found a lack of intent to breach a duty to disclose references. Without analysis and applying the abuse of discretion review standard, the Court found that these factual determinations sufficiently established that the Board did not abuse its discretion.

PTO Re-Opens to Public

by Amol Parikh | Jun 2, 2022 | Patents

The US Patent & Trademark Office (PTO) re-opened to the public on May 25, 2022. Both the headquarters in Alexandria, Virginia, and the regional offices in Dallas, Texas; Denver, Colorado; Detroit, Michigan and San Jose, California, are now open. The offices had been closed to the public since March 16, 2020, because of the COVID-19 pandemic.

Visitors will be required to complete a health questionnaire and may be denied entry depending on the results of the questionnaire. Local COVID-19 infection rates will determine whether masks are required in each office.

Although the PTO is open to the public, oral hearings before the Patent Trial & Appeal Board and Trademark Trial & Appeal Board will still be conducted by video or telephone. In-person interviews with examiners are now possible, however.

Oh Snap: Sufficient Reasoning Must Support Declaratory Judgment Dismissal

by Cecilia Choy, Ph.D. | Jun 2, 2022 | Patents

The US Court of Appeals for the Federal Circuit vacated and remanded the dismissal of a declaratory judgment action because the district court failed to sufficiently support its decision. Mitek Systems, Inc. v. United Services Automobile Association, Case No. 21-1989 (Fed. Cir. May 20, 2022) (Dyk, Taranto, Cunningham, JJ.)

United Services Automobile Association (USAA) owns four patents directed to using a mobile device to capture and transmit an image of a bank check for deposit. Mitek created software for mobile check capture called MiSnap™, which it licenses in the form of a software development kit to financial institutions. In 2017, USAA sent letters to Mitek’s customers, some with claim charts and patent lists. The customers subsequently demanded indemnification by Mitek. In 2018, USAA sued Wells Fargo, a Mitek customer, in the Eastern District of Texas. As the case progressed, USAA served a subpoena on Mitek seeking documents, source code and testimony about MiSnap™. The case went to trial on two of the four patents, and Mitek and its products were frequently mentioned.

Shortly thereafter, Mitek filed a complaint in California seeking declaratory judgment of no infringement as to all four USAA patents. To support jurisdiction for its declaratory judgment claim, Mitek alleged that there was real and substantial apprehension of imminent litigation between Mitek and USAA for infringement of the patents-in-suit. In response, USAA argued that there was no case or controversy as required by Article III of the Constitution, and thus the case should be dismissed under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. USAA also argued that the California court should exercise discretion to decline to hear claims for declaratory relief. USAA requested alternatively that the action be transferred to the Eastern District of Texas.

The California court transferred the case to the Eastern District of Texas. The Texas court then dismissed the action for lack of a case or controversy and stated that the court would exercise discretion to decline to entertain the declaratory judgment action. Mitek appealed.

Addressing subject matter jurisdiction, the Federal Circuit explained that the question was “whether the facts alleged, under all the circumstances, show that there is substantial controversy, between parties having adverse legal interest, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Along these lines, a plaintiff must plead facts sufficient to establish jurisdiction at the time of the complaint, and a case or controversy must remain present throughout the course of the suit. The Court found that the Texas court’s decision provided insufficient reasoning for dismissal because it failed to identify first whether to treat the Rule 12(b)(1) motion as a facial or factual challenge, as required under Fifth Circuit precedent. The Federal Circuit instructed the district court on remand to explore any post-filing events that may have impacted jurisdiction, as well as similarities between Mitek’s relationships with Wells Fargo and other customers.

The Federal Circuit found that the district court’s case or controversy analysis was similarly inadequate. The Court explained [...]

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Except Where Futile, Litigant Must Preserve Issue at Jury Instruction Phase to Preserve Claim Construction Dispute

by Joshua Revilla | Jun 2, 2022 | Patents

The US Court of Appeals for the Federal Circuit affirmed the denial of a defendant’s post-judgment motion for a new trial based on a failure to preserve an O2 Micro challenge. The Court also reversed the denial of a prejudgment interest award to the plaintiff. Kaufman v. Microsoft, Case Nos. 21-1634; -1691 (Fed. Cir. May 20, 2022) (Dyk, Reyna, Taranto, JJ.)

Michael Philip Kaufman brought a patent infringement suit against Microsoft asserting his now-expired patent that covered a method for operating a computer to automatically generate an end-user interface that permit users to interact with data in relational databases (which store data in multiple tables that are related to each other in defined ways). Kaufman alleged infringement by Microsoft’s development tools for the .NET framework software platform, specifically Microsoft’s Dynamic Data product that allegedly automatically generated a web application for viewing and editing data. A jury found Microsoft liable for infringement and awarded $7 million in damages. Post-trial, Microsoft moved for judgment as a matter of law and a new trial, arguing that the district court failed to resolve claim construction disputes before trial and that Microsoft was therefore entitled to a new trial under 02 Micro. Kaufman moved for prejudgment interest. Both motions were denied, and both sides appealed.

Microsoft argued that the district court erred by not clarifying the claim term “automatically” and that a new trial was warranted under O2 Micro because the clarification reasonably could have led the jury to a different verdict. The Federal Circuit disagreed, explaining that Microsoft failed to preserve its O2 Micro challenge by not pursuing the matter at the jury instruction phase. The Court reasoned that the parties did not request a construction of “automatically” during the original Markman proceeding, nor did Microsoft propose a definition of “automatically” in its proposed jury instructions defining the term. Further, in its summary judgment briefing, Microsoft only said that there was a “fundamental legal dispute” as to the definition of “automatic.” Microsoft never clearly stated that a construction was needed on the term or offered the district court a formulation of such a claim construction. Microsoft also never defined a proposed construction for the term that would accommodate its action after trial. While the Court allowed that a claim construction issue does not always need to be re-raised in the specific setting of making proposals for, or airing objections to, jury instructions, that exception is limited to situations where the issue was sufficiently raised and settled earlier. The Court explained that application of that principle was settled in O2 Micro, “referring to circumstances in which the claim-construction position of the appellant was ‘made clear to the district court,’ a further objection would have been ‘not only futile but unnecessary,’ and the issue was ‘fully litigated and decided at the Markman stage of the litigation.’”

Turing to Kauffman’s appeal, the Federal Circuit reversed the denial of prejudgment interest. The district court had reasoned that the jury verdict “subsumed interest” and that Microsoft was prejudiced by [...]

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Arthrex, Still Without Director Review, Gets Constitutional Review from Patent Commissioner

by Christopher M. Bruno | Jun 2, 2022 | Patents

A panel of the US Court of Appeals for the Federal Circuit considered whether the Patent Commissioner, on assuming the role of the US Patent & Trademark Office (PTO) Director, can constitutionally evaluate the rehearing of Patent Trial & Appeal Board (Board) inter partes review (IPR) decisions. The panel concluded that neither Appointments Clause jurisprudence nor the Federal Vacancies Reform Act (FVRA) impeded the Commissioner from exercising the PTO Director’s authority. Arthrex, Inc. v. Smith & Nephew, Inc. et al., Case No. 18-2140 (Fed. Cir., May 27, 2022) (Moore, C.J.; Reyna, Chen, JJ.)

Approximately one year ago, Arthrex succeeded in the Supreme Court of the United States on its argument that the Appointments Clause of the Constitution was violated unless a presidentially appointed and Senate-confirmed officer (such as the PTO Director) could review the Board’s final IPR decisions. (United States v. Arthrex, Inc.) The case returned to the PTO on remand. At the time, the position of PTO Director was vacant, and there was no acting director. Pursuant to the FVRA, the Commissioner of Patents (a position filled by the Secretary of Commerce) exercised the PTO Director’s authority to review Board decisions and ultimately rejected Arthrex’s challenge to the Board’s unpatentability determination. Arthrex appealed.

Arthrex contended that the Commissioner could not constitutionally exercise the PTO Director’s IPR review authority without running afoul of the Appointments Clause, that the FVRA barred the Commissioner’s exercise of authority and that the Commissioner violated separation of powers. Arthrex also challenged the ruling on the merits. None of these challenges were successful.

First, the Federal Circuit concluded that Arthrex reinforced long-settled Supreme Court precedent that an inferior officer could exercise a principal officer’s authority constitutionally on a temporary basis without violating the Appointments Clause. Here, the Court concluded that the Commissioner’s exercise of the PTO Director’s IPR review authority until a new director was installed presented no problem.

Second, the FVRA provides a statutory framework for the exercise of a principal officer’s duties under certain circumstances, which, if the law applied, would not have allowed the Commissioner to review IPR decisions. However, the Federal Circuit explained that the FVRA narrowly governs only those duties of an officer that are statutorily non-delegable (i.e., which US Congress has required to be exercised personally by the officer). According to the Court, such provisions did not apply here because nothing demonstrated that the PTO Director’s newly created authority to review IPR decisions was non-delegable.

Third, the Federal Circuit rejected Arthrex’s argument that the Commissioner’s service as the PTO Director violated the line of precedent that limits Congress’ ability to circumscribe the president’s removal authority for superior officers. Arthrex contended that the Commissioner, a non-superior officer, could be removed only for “misconduct or nonsatisfactory performance” and therefore could not fill the role of the PTO Director. The panel disagreed, explaining that the president could name an acting director “with the stroke of a pen,” and so the limits on removing the Commissioner from his role as Commissioner [...]

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