October 30, 2020
World Intellectual Property Review
By Jason L. Romrell; J. Derek McCorquindale; Brandon T. Andersen
On October 13, the US Supreme Court granted certiorari in Arthrex v Smith & Nephew, (case numbers 19-1434, -1452, and -1458). Accordingly, the Supreme Court will now consider whether the Patent Trial and Appeal Board’s (PTAB’s) administrative patent judges (APJs) were unconstitutionally appointed.
The US Constitution requires that “Officers of the United States” be appointed by the President “with the advice and consent of the Senate”. An exception is made for “inferior officers”, which may be appointed without senate oversight and by either the President, courts of law, or heads of departments, as chosen by Congress.
Therefore, the constitutionally correct procedure for installing a federal officer depends on whether the officer is an “inferior” (in which case they may be appointed by a party chosen by Congress) or whether the officer is what courts have come to call a “principal” (in which case they must be appointed by the President with the Senate’s advice and consent).
In this article, Finnegan attorneys Jason Romrell, Derek McCorquindale, and Brandon Andersen discuss Arthrex v Smith & Nephew and how the Supreme Court’s decision may impact pending cases.
Read the full article here.
Originally printed in World Intellectual Property Review on October 30, 2020. This article is for informational purposes, is not intended to constitute legal advice, and may be considered advertising under applicable state laws. This article is only the opinion of the authors and is not attributable to Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, or the firm's clients.
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