Federal Circuit refuses Arthrex rerun, prerogative now with SCOTUS
The US Court of Appeals for the Federal Circuit will leave it to the Supreme Court to review its controversial Arthrex decision that Patent Trial and Appeal Board (PTAB) judges were unconstitutionally appointed.
The Federal Circuit yesterday, March 23 declined to review the Arthrex decision, meaning it will be up to the Supreme Court to reverse, if asked.
The court has come in for criticism since last November’s ruling, which severed the portion of US patent law blocking the US Patent and Trademark Office (USPTO) director from removing PTAB judges from office.
The reasoning for this decision was that PTAB judges, or administrative patent judges (APJs), were supposed to be “inferior officers” under the US constitution, meaning they should be subject to adequate oversight by higher officials.
As it was, PTAB judges were not subject to any such oversight, meaning that under the constitution they should be appointed by the President and confirmed by the Senate, rather than the secretary for commerce.
Allowing the USPTO director to remove PTAB judges at will was, in the Federal Circuit’s eyes, the “narrowest viable approach” to solving the problem while preserving lawmakers’ intent.
The Arthrex ruling has been met with opposition by the US government itself. According to the government, the USPTO director already had sufficient powers to oversee PTAB judges without the Federal Circuit’s solution.
The government urged the full Federal Circuit panel of judges to review the decision (en banc), but the court yesterday declined to do so.
According to circuit judge Kimberly Moore, blame for the constitutional problem lay with Congress, while the Federal Circuit’s fix minimised disruption to the patent system.
“Rehearing this case en banc would have unravelled an effective cure and created additional disruption by increasing the potential number of cases that would require reconsideration on remand,” Moore wrote in yesterday’s decision.
Refusal to review the decision was not unanimous however, with several circuit judges agreeing with the government that the statutory oversight of APJs was already sufficient prior to Arthrex.
APJs could still be dismissed under the rule which allows agencies to remove employees in order to “improve the efficiency of the service”, circuit judge Timothy Dyk argued.
“What I do suggest is that Congress almost certainly would prefer the opportunity to itself fix any appointments clause problem before imposing the panel’s drastic remedy,” Dyk wrote.
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