NEW SUPREME COURT RULING

United States v. Arthrex, Inc., et al, Appeal No. 2019-1434 (Fed. Cir. June 21, 2021)

The Supreme Court issued its long-awaited decision today on the constitutionality of the Patent Trial and Appeal Board (PTAB). The Court held that the Administrative Patent Judges (APJs) who make up the majority of the PTAB are not constitutionally appointed under the Appointments Clause of the U.S. Constitution. To remedy this defect, a majority of the Court held that the Director has the authority to review PTAB decisions.

We covered the Federal Circuit’s original opinion in this case here, and have covered its impact on other cases routinely over the past year and a half.

The case involves the PTAB, the body designated to hear post-grant reviews including inter partes reviews, among other decisions at the Patent Office. The 200 Administrative Patent Judges (APJs) who make up the PTAB are appointed by the Secretary of Commerce. On appeal from an inter partes review, Arthrex challenged that the PTAB is unconstitutional. Arthrex argued that the APJs are principal officers as opposed to inferior officers, and that as principal officers they are not appointed by the President, as would be required under the Appointments Clause of the U.S. Constitution. That clause states as follows:

[the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Read the Case Here.

By Nika Aldrich

Edited by: Scott D. Eads and Nika Aldrich, Schwabe Williamson & Wyatt