SCOTUS agrees to hear Arthrex
The US Supreme Court has granted certiorari in three cases concerning constitutional challenges to the appointment of administrative patent judges.
Today, October 13, the US’ highest court agreed to review whether the appointment and oversight of Patent Trial and Appeal Board (PTAB) judges is unconstitutional.
Nearly one year ago, the US Court of Appeals for the Federal Circuit issued the highly controversial Arthrex decision, in which it concluded that judges are “principal officers” under the US constitution and, as such, should be appointed by the President, subject to confirmation by the Senate.
To solve this, the court granted the US Patent and Trademark Office director the power to remove the administrative patent judges from office.
After handing down its decision, the Federal Circuit cancelled PTAB decisions in 39 cases, ordering them to be reheard after the constitutional problem was fixed. These cases have now resulted in a combined petition to the Supreme Court, seeking a reversal of the Federal Circuit’s decision.
The US government also filed its own petition for cert, which was granted today. The two related petitions, one filed by medical device company Arthrex and competitor maker Smith & Nephew, were also granted, with a total of one hour allocated for oral argument.
Read more on the background to Arthrex here.
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