USPTO Director May Soon Get Last Word At PTAB

Court Explores Potential Outcomes in Arthrex

As I have discussed previously, Arthrex is more of an academic exercise for constitutional and administrative law nerds scholars than anything else.  Today's oral argument has done nothing to disabuse me of that notion.  While it is a fool's errand to speculate at a SCOTUS outcome based on oral arguments, I am the perfect man for the job ??

First, it is clear to me that the Court is certainly not going to declare the PTAB unconstitutional in its entirety.  Indeed, any overreach in this case would very likely result in collateral damage to myriad executive agencies that include adjudicating officers.  The Court stressed that it typically looks for a "clear solution" or narrow holding in such cases.  To this end, the Court appears to be contemplating that the Director's ability to guide policy- which must be followed by individual judges in arriving at a decision in very narrow and fact specific cases-may be enough