The U.S. Supreme Court has agreed to hear, on March 1, 2021, whether administrative patent judges (APJs) of the Patent Trial and Appeal Board (PTAB) of the U.S. Patent and Trademark Office (USPTO) are “inferior” officers properly appointed under the Appointments Clause of the U.S. Constitution (U.S. Const., art. II, § 2, cl. 2), and, if not, whether the “fix” by the Federal Circuit in Arthrex v. Smith & Nephew, 941 F.3d 1320 (Fed. Cir. 2019) worked.
In separate petitions (now consolidated) from the same panel decision of the Federal Circuit in Arthrex, the U.S. and Smith & Nephew, as petitioners, are challenging the Federal Circuit’s declaration that PTAB APJs are principal officers of the United States and thus were appointed in violation of the Appointment’s Clause. Arthrex, as respondent, is defending the Federal Circuit’s conclusion that PTAB APJs are principal officers, but is itself challenging whether the “fix” of severing Title 5 protection of APJs after October 31, 2019 works.
Thirty-one separate amicus briefs on the merits were submitted in this matter, and they present a wide variety of views on how the Supreme Court should handle the questions presented.