Amici and Practitioners Attempt to Read the Arthrex Tea Leaves
Yesterday, the Supreme Court heard oral arguments in the most closely-watched patent case of the term, United States / Smith & Nephew v. Arthrex. IPWatchdog reached out to some of the amici in the case, as well as patent practitioners and other stakeholders, to get their take on how the hearing went and what the future holds for the Administrative Patent Judges (APJs) of the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB). Most agreed that it’s unlikely the Court will dismantle the PTAB altogether, but that they were clearly uncomfortable with the present structure. Below, our experts weigh in on some potential outcomes.
The Amici
Jared McClain, New Civil Liberties Alliance
“The Chief Justice’s questions today highlighted a major concern with the positions of Smith & Nephew and the Solicitor General in this case: to allow the Director, in the name of supervision and control, to opaquely affect the outcome of individual patent determinations because he lacks plenary review power would not only undermine the transparency in government that the Appointments Clause exists to promote—doing so would also undermine the due process of law. The Court must craft a decision that accounts for structural integrity and transparency required by the Appointments Clause without depriving litigants of their due-process rights during agency adjudications.”
March 2, 2021
