On June 21, 2021, the Supreme Court of the United States issued its decision in United States v. Arthrex, Inc., a case that questioned whether the appointment of Patent Trial and Appeal Board (PTAB) judges violated the U.S. Constitution’s appointments clause. The high court largely upheld the current process and gives the U.S. Patent and Trademark Office (USPTO) director the power to overturn inter partes review (IPR) decisions. However, practitioners expect to receive further guidance from the USPTO. Bloomberg Law interviewed Finnegan partner Erika Arner for her thoughts on the decision.
President Joe Biden has yet to name a new USPTO director, so it is unclear what the director’s new review process will look like. Erika said, “There are a few statements that explain what needs to happen in very broad-brush terms, but beyond that, the court gave very little guidance as to specifics of what needs to happen next.” She expects the USPTO will issue proposed guidance soon, as the agency acted in a matter of days to provide guidance for how to implement the Supreme Court’s 2018 ruling in SAS Institute v. Iancu, which forced the PTAB to consider all patent claims challenged in an IPR.
Read “High Court Patent Ruling Helps Agency Head Shape Results”
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Arthrex v. Smith & Nephew , United States v. Arthrex, Supreme Court of the United States (SCOTUS), Patent Trial and Appeal Board (PTAB), administrative patent judge (APJ)
