Lack of Supervision Over PTAB Judges Runs Afoul of Appointments Clause

IP Law Daily interviewed Finnegan partner Joshua Goldberg for his reaction to the Supreme Court of the United States’ decision in United States v. Arthrex, Inc. The Court ruled that the appointment of Patent Trial and Appeal Board (PTAB) administrative patent judges (APJs) is unconstitutional under the U.S. Constitution’s appointments clause.

Josh said, “We know that Arthrex is not entitled to a hearing before a new panel of APJs. We also know that the appropriate remedy is a remand to the acting director for him to decide whether to rehear the petition filed by Smith & Nephew. But the ruling does not require the director to review every decision of the PTAB. It remains to be seen what additional review by the director will look like and which cases the director will choose to review."