Last week, the United States Court of Appeals for the Federal
Circuit issued a decision giving losing parties the right to a
do-over in numerous recent Patent Trial and Appeal Board (PTAB)
cases. Arthrex, Inc. v. Smith & Nephew, Inc., No.
2018-2140 (Fed. Cir. Oct. 31, 2019). The Appointments Clause
in the U.S. Constitution prescribes two different methods to name
individuals to fill official governmental positions: higher
level positions – ambassadors, justices of the Supreme Court,
and other important "Officers of the United States"
– require a presidential nomination and the advice and
consent of the Senate; "inferior Officers" can be
appointed as Congress determines. On which side of this line
do PTAB Administrative Patent Judges (APJs) fall? APJs
adjudicate proceedings challenging patent validity such as
inter partes review (IPR) proceedings. By statute,
APJs are appointed by the secretary of commerce, in consultation
with the director of the U.S. Patent and
