SCOTUS Rules Patent Judges are Unconstitutionally Appointed, Splits on Remedy
Highlights
In a fractured decision, five U.S. Supreme Court justices agreed with the Federal Circuit and held that Patent Trial and Appeal Board (PTAB) judges are unconstitutionally appointed
Seven justices held that severing the section of the Patent Act that made PTAB decisions reviewable only by a panel of other PTAB judges fixed any constitutional issue
It is not clear which of the justices’ varying approaches to administrative law issues will win out
In a dispute that threatened to wipe out the entire Patent Trial and Appeal Board’s (PTAB) administrative review process of Patent and Trademark Office (PTO) decisions, the issue of administrative patent judges’ (APJ) power was raised and taken up by the U.S. Supreme Court. At issue in United States v Arthrex Inc. was whether APJs are principal officers of the government who must be appointed by the president and confirmed by the Senate under the U.S. Constitution’s appointment clause or by inferior officers, or if they can be appointed by heads of departments.
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