This week, the Supreme Court granted certiorari in a set of related cases between Arthrex and Smith & Nephew, as well as the federal government. The cases revolve around one fundamental question: are judges of the Patent Trial and Appeal Board (PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA.) principal officers of the United States? That question controls the constitutionality of their appointment. A principal officer must be appointed with the advice and consent of the Senate; an inferior officer’s appointment can be delegated to a department head. PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. judges are appointed by the Secretary of Commerce, not via advice and consent, meaning that they are only properly appointed if they are inferior officers.
While this case focuses on PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. judges, it seems likely that the Court took it to more broadly explain the distinction between inferior and principal officers, a distinction likely to have impacts throughout the federal government.
Smith & Nephew v. Arthrex
After being sued, Smith & Nephew successfully challenged Arthrex’s patent at the PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA.. As part of its appeal, Arthrex argued that the PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. judges were not constitutionally appointed and their decision was therefore invalid. A Federal CircuitSee CAFC panel, composed of Judges Moore, Reyna, and Chen, decided that the Director of the Patent and Trademark Office lacked sufficient supervision over PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. judges to render them inferior officers. Without remedy, this would have rendered the PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. unconstitutional.
To remedy this, the Federal CircuitSee CAFC panel decided that the simplest fix was to strip PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. judges of their civil service protections, enabling the Director to fire judges at will as a method of control. With this in place, the Arthrex panel found that the modified PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. was composed of inferior officers and thus constitutional. In denying a petition for rehearing en banc, two Federal CircuitSee CAFC judges explained that the panel opinion was incorrect and the Director has significant ability to supervise and control PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. judges.
In fact, we’ve seen exactly this play out in the present PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA., where judges have increasingly denied institution of inter partes reviews for non-merit reasons based on the Director’s expressed preference and policy of doing so. Similarly, the Director has set PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. policy on same-party joinder, the standard at institution for status of a reference as a printed publicationThe term applied when a patent application or issued patent is made public. Normally required 18 months after filing. A feature unique to the U.S. patent system allows patent applicants who limit their application solely to the United States to delay publication until the patent is issued by the USPTO., and whether the Board may consider a ground of unpatentability the petitioner did not raise against amended claims. In each of these instances, the Director actively stepped into the case and controlled the outcome via the use of precedential opinion panels.
Arthrex in the House
The House Judiciary Committee quickly responded to the Arthrex decision, holding a hearing on the implications of the decision. Multiple witnesses expressed concerns about the decision and the potential hazards of making PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. judges fireable at will. None felt it was good policy. Instead, all suggested making PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. decisions explicitly reviewable, whether by the Director or some other appointee or appointees. However, there was relatively little attention given at the hearing to the key question of whether PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. judges are inferior or principal officers. While the House has not yet introduced legislation to address this concern, such legislation could potentially moot much of the case.
Arthrex at the Supreme Court
The Court granted certiorari on two questions—whether the judges of the PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. are principal officers, and whether, assuming they are principal officers, the Federal Circuit’s remedy of severing civil service protections properly cured the defect. (The Court passed on the third proposed question regarding whether the issue was waived.)
Much like previous major PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. cases such as SAS and Oil States, this case is likely to attract a significant amount of attention from a wide range of amici. And concerns raised in Cuozzo and Oil States about panel selection “shenanigans” a Director could employ might come back to suggest that the Director does in fact have sufficient ability to control the outcome of cases and thus that PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. judges are inferior officers.
At the end of the day, I think that the Court will find that PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. judges are inferior officers based on the Director’s significant direct and indirect abilities to control their work. But if the Court reaches the opposite conclusion, I expect that Congress will act to fix the issue. The only question is whether the sponsors would allow a bill that cleanly fixes the issue to be amended to include the bad ideas that opponents of the PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. have been trying to push for years.