The Potential Impact of Arthrex on the TTAB and ITC

Over a year ago, in late October 2019, the U.S. Court of Appeals for the Federal Circuit ruled in Arthrex, Inc. v. Smith & Nephew, Inc. that the Patent Trial and Appeal Board’s (PTAB’s) administrative patent judges (APJs) who oversee inter partes review proceedings hold office in violation of the Appointments Clause of the U.S. Constitution. The clause 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. The PTAB APJs are appointed as if they were inferior offices; however, in Arthrex, the Federal Circuit held that the PTAB’s APJs are in fact principal officers due to “[t]he lack of any presidentially-appointed officer who can review, vacate, or correct [their] decisions” and the Secretary’s “limited removal power.” On October 13, 2020, the U.S. Supreme Court granted certiorari in Arthrex and will now consider whether the PTAB’s APJs were unconstitutionally appointed.

The broader application of Arthrex could call into question the appointments of administrative law judges across many federal agencies. The purpose of this article is to review the appointment process, oversight, and responsibilities of other IP tribunals—including the Trademark Trial and Appeal Board (TTAB) and the U.S. International Trade Commission (ITC)—and consider the implications of Arthrex, if any, on their constitutionality.

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