Appointments Clause

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On October 13, 2020, the Supreme Court granted petitions for certiorari filed by the United States (in No. 19-1434), Smith & Nephew, Inc. (in No. 19-1452), and Arthrex, Inc. (in No. 19-1458) regarding the appointments of the administrative patent judges of the Patent Trial and Appeal Board.  No date has been set to argue the cases, but the Court consolidated them and allotted one hour for argument time.  Because the Court consolidated the cases for briefing and oral argument, it noted that “future filings and activity in the cases will now be reflected on the docket of No. 19-1434.”  On December 31, 2020, the Court set oral argument for March 1, 2021.

The various petitions were granted only to the extent of “Questions 1 and 2 as set forth in the July 22, 2020 Memorandum for the United States.”  See Orders List at 2.

Question 1 asks “[w]hether, for purposes of the Appointments Clause, U.S. Const. Art. II, § 2, Cl. 2, administrative patent judges of the U.S. Patent and Trademark Office are principal officers who must be appointed by the President with the Senate’s advice and consent, or ‘inferior Officers’ whose appointment Congress has permissibly vested in a department head.”

Question 2 asks “[w]hether, if administrative patent judges are principal officers, the court of appeals properly cured any Appointments Clause defect in the current statutory scheme prospectively by severing the application of 5 U.S.C. § 7513(a) to those judges.”

Links to the briefs, and details of the briefing schedule, are below. [Updated 1/8/2021, to reflect most current filings, and argument date]…
Continue Reading Supreme Court grants certiorari in PTAB Appointments Clause cases

Last week, we wrote about Arthrex, Inc. v. Smith & Nephew, Inc. and described recent developments that suggested the Federal Circuit was leaning toward holding that all current PTAB judges had been unconstitutionally appointed in violation of the Appointments Clause of Article II. The Federal Circuit has now done just that …
Continue Reading Federal Circuit Holds that PTAB Judges Were Unconstitutionally Appointed

An order from the Federal Circuit on October 15 suggests the court may be close to holding that the PTAB has been operating in violation of the Appointments Clause, which could significantly disrupt PTO operations.  The case presents important questions: whether the PTAB’s judges have been lawfully appointed, and if not, what happens to decisions that have been issued by panels of those judges?
Continue Reading Constitutional Challenge under the Appointments Clause May Upend PTAB Proceedings