On October 13, 2020, the Supreme Court of the United States granted cert in Arthrex Inc. v. Smith & Nephew Inc., a case that questions whether the appointment of Patent Trial and Appeal Board (PTAB) judges is constitutional. Law360 interviewed Finnegan partner Erika Arner for her reaction to the Court’s decision to hear a case that will impact hundreds of patent cases.
The Supreme Court’s decision will determine whether the PTAB’s administrative patent judges are principal officers, requiring presidential appointment and U.S. Senate confirmation, or inferior officers, requiring no confirmation and can be appointed by a department head. Erika said, “These big questions, like what is an inferior officer and what kinds of decisions are they able to make and how is Congress able to empower them, I think we need to remember that the Supreme Court likely views those through a much broader lens than just the Patent and Trademark Office.”
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