Arthrex filed its reply brief on February 19th,
submitting what will be the final word in the case until oral
arguments are presented next week. In its reply, Arthrex seeks to
shore up its own arguments while rebutting the arguments made
by Smith & Nephew and the United States in their individual
replies.
The consolidated Arthrex cases (docketed
as 19-1434), ask the Court to determine whether
administrative patent judges (APJs) are principal or inferior
officers and, if they are principal officers, what remedy should be
employed to bring their appointments into compliance with the
Appointments Clause of the Constitution. Currently, APJs are
appointed by the Secretary of Commerce, and are assigned to panels
as designated by, and otherwise supervised by, the Director of the
USPTO. The United States and Smith & Nephew have argued
that APJs are inferior officers because they are supervised
"at some level." Because APJs are supervised by the
Director, they argued, APJs
