Arthrex Finds that APJs Are Unconstitutionally Appointed

In its June 21, 2021, decision in United States v. Arthrex Inc., the Supreme Court of the United States held that the appointment of Patent Trial and Appeal Board (PTAB) administrative patent judges (APJs) is unconstitutional. APJs were appointed by the Secretary of Commerce which required that they be supervised by a “superior officer.” However, Arthrex argued that APJs are not “inferior officers” under the U.S. Constitution’s appointments clause and therefore should be appointed by the President and confirmed by the Senate. Intellectual Property Magazine interviewed Finnegan partner Trenton Ward for his thoughts on the decision.

Trenton noted that the SCOTUS’ decision is “significant” as it negates speculation that the court “might disband the PTAB in favor of a potential Congressional fix.” He added, “We do not anticipate any impact on administrative patent judge appointments going forward, as the court’s decision requires USPTO director discretion to review PTAB decisions but does not indicate that changes to the appointment process for APJs are necessary. It remains to be seen what additional review by the director will look like and which cases the director will choose to review.”

Read “Arthrex Finds that APJs Are Unconstitutionally Appointed”