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Amicus Briefs

U.S. v. Arthrex Inc.; U.S. v. Polaris Innovations; Smith & Nephew Inc. v. Arthrex Inc.

CASE SUMMARY

​At issue in the consolidated set of cases was whether administrative patent judges (APJs) can be appointed by the U.S. Secretary of Commerce or whether the Constitution requires the President to appoint these judges and the Senate to confirm them.

In its amicus brief, filed in December 2020, NCLA argued (with Arthrex) that APJs are “principal officers” of the United States. Hence, according to the Constitution’s Appointments Clause, they must be appointed by the President with the advice and consent of the Senate. The Secretary of Commerce, as the head of a department, could appoint APJs if they were deemed “inferior officers.” But under the America Invents Act of 2011, APJ decisions cannot be reviewed by a superior in the Executive Branch—only by other APJs. This fact means that APJs are “principal” officers. Therefore, the Appointments Clause requires appointment by the President himself, thereby ensuring presidential accountability for their performance in office.

In a win for NCLA, on April 22, 2021, a divided Supreme Court vacated an earlier decision in United States v. Arthrex, Inc., et al. by the U.S. Court of Appeals for the Federal Circuit and held that administrative patent judges were not appointed to their positions in the manner Article II of the Constitution requires.

Justice Gorsuch quoted NCLA’s amicus brief in his concurring opinion to demonstrate that Congress likely disapproved of the remedy devised by the majority.

OUR TEAM

Mark Chenoweth
President and Chief Legal Officer
Margaret A. Little
Senior Litigation Counsel

RELEVANT MATERIALS

NCLA FILINGS

Opinion of the U.S. Supreme Court

June 21, 2021 | Read More

Supreme Court Oral Argument in United States v. Arthrex, Inc.

March 1, 2021 | Read More

Brief of the New Civil Liberties Alliance as Amicus Curiae Urging Reversal in Part and Supporting Respondents in 19-1434 and 19-1452

December 30, 2020 | Read More

PRESS RELEASES

In NCLA Amicus Win, Supreme Court Rules Admin. Patent Judges Are Unconstitutionally Appointed

June 21, 2021 | Read More

NCLA Asks US Supreme Ct. to Let Congress Fix Appointments Clause Defect in Admin. Patent Judges

December 31, 2020 | Read More

IN THE MEDIA

The Hamburger Court

The New York Sun

February 8, 2023

In Arthrex, Justices Deal New Blow To Agency Independence

Law360

February 8, 2023

Industry Reacts to the Supreme Court’s Arthrex Ruling: Chaos Averted – or Just Delayed?

IPWatchdog

February 8, 2023

Amici and Practitioners Attempt to Read the Arthrex Tea Leaves

IP Watchdog

February 8, 2023

Getting Ready for Arthrex: What the Amici Are Saying

IP Watchdog

February 8, 2023

SEE 7 MEDIA MENTIONS
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