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3 November 2020PatentsJason Romrell, Derek McCorquindale and Brandon Andersen

Arthrex: who are you calling inferior?

On October 13, the US Supreme Court granted certiorari in Arthrex v Smith & Nephew, (case numbers 19-1434, -1452, and -1458). Accordingly, the Supreme Court will now consider whether the Patent Trial and Appeal Board’s (PTAB’s) administrative patent judges (APJs) were unconstitutionally appointed.

What does the case concern?

The US Constitution requires that “Officers of the United States” be appointed by the President “with the advice and consent of the Senate”. An exception is made for “inferior officers”, which may be appointed without senate oversight and by either the President, courts of law, or heads of departments, as chosen by Congress.

Therefore, the constitutionally correct procedure for installing a federal officer depends on whether the officer is an “inferior” (in which case they may be appointed by a party chosen by Congress) or whether the officer is what courts have come to call a “principal” (in which case they must be appointed by the President with the Senate’s advice and consent).

Unfortunately, the Constitution provides little guidance on how to differentiate between principal and inferior officers. Case law provides some guidance.

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More on this story

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21 June 2021   The US Supreme Court has confirmed that judges for the Patent Trial and Appeal Board (PTAB) act as unconstitutional principal officers, and should therefore have been appointed by the President, in its final ruling in United States v Arthrex.
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26 July 2021   The US Court of Appeals for the Federal Circuit has reversed two prior patent invalidation rulings from the US Patent Trial and Appeal Board (PTAB) owned by chemical company Chemours.
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26 July 2021   Amid mounting speculation over the uncertainty caused by the US Supreme Court decision’s landmark decision in US v Arthrex, the United States Patent and Trademark Office (USPTO) has posted several updates issuing guidance. But lawyers tell WIPR that some key questions remain.