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ARTICLE · 13 NOVEMBER 2019

Fixing An Appointments Clause Violation

Marshall, Gerstein & Borun LLP
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In Arthrex Inc. v. Smith & Nephew, Inc., Appeal 2018-2140 (Fed. Cir. Oct. 31, 2019), the Federal Circuit concluded that the PTAB's Administrative Patent Judges ...

United StatesIntellectual Property
Sandip H. Patel
Sandip H. Patel
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In Arthrex Inc. v. Smith & Nephew, Inc., Appeal 2018-2140 (Fed. Cir. Oct. 31, 2019), the Federal Circuit concluded that the PTAB's Administrative Patent Judges (APJs) are "principal" officers and their appointment by the Secretary of Commerce therefore violates the Constitution's Appointments Clause. The issue arose in an appeal of a decision by a panel of APJs canceling claims in Arthrex's patent in a recent inter partes review (IPR). But because that decision occurred while there was an Appointments Clause violation, the court vacated and remanded the IPR to be decided by a different panel of APJs.The court also severed text from the patent statute that limited the removal of APJs by the Director, thereby transforming them from "principal" officers to "inferior" officers, so as to remedy the constitutional violation. Following this decision, APJs will not lack authority to render final written decisions in IPRs.

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