In an article published by Law360, Mark Selwyn, Joshua Stern, Kevin Yurkerwich, Lauren Mangano Drenkard and Chetan Chandra discuss potential open issues following the US Supreme Court decision in US v. Arthrex Inc.
Excerpt: On June 21, the US Supreme Court issued its decision in US v. Arthrex Inc.
Two questions were before the court. First, are administrative patent judges principal officers who must be appointed by the president and confirmed by the US Senate under the appointments clause of the US Constitution? Second, if APJs are principal officers, what remedy should be adopted to cure the constitutional violation?
The Supreme Court held that APJs are principal officers. But the Supreme Court disagreed with the remedy adopted by the US Court of Appeals for the Federal Circuit, which had severed restrictions on removing APJs from their positions by "invalidat[ing] the tenure protections for APJs" and making APJs removable at will.
Instead, the Supreme Court struck down restrictions on the director's authority to unilaterally review final decisions of the Patent Trial and Appeal Board.
The US Patent and Trademark Office quickly issued guidance following Arthrex. But the USPTO's guidance leaves open many questions that are — or may be — the subject of current and future appeals.
