High Court Hears Arguments on Appointment of Administrative Patent Judges

On March 1, 2021, the Supreme Court of the United States heard oral arguments in United States v. Arthrex, a case that will determine whether Patent Trial and Appeal Board (PTAB) administrative patent judges (APJs) are unconstitutionally appointed. APJs are currently appointed by the Secretary of Commerce with input from the U.S. Patent and Trademark Office (USPTO) Director; however, Arthrex argues that APJs are “principal officers” who must be appointed by the President, and that current procedure violates the Appointments Clause of Article II of the U.S. Constitution. IP Law Daily contacted Finnegan partner Cory Bell for his thoughts on the oral arguments.

Cory said:

“If the Court finds a problem and declines to fix it, the case could have a lot of significance both at the PTO and for other executive agencies. First, at the PTO, there are 700+ pending matters before the PTO that would be in an uncertain status. Second, beyond the PTO, the practical impact of any test promulgated by the Court will need to be evaluated. One takeaway is that the Court seems to be grappling with the amount of supervision required and whether the Court can draw a distinction between supervision of policy setting activities and factual findings based on policy. If supervision of factual findings in each case is required, there seemed to be agreement that it could be fixed by striking part of the statute. But it was not clear if the Court would be willing to do so.”