Supreme Court Will Dive Into Case That Rattled Patent Board

WASHINGTON (CN) — In a case that plunged more than a hundred U.S. Patent Trial and Appeal Board cases into uncertainty, the Supreme Court agreed Tuesday to decide how that body’s judges can be appointed.

The justices consolidated three petitions involving the medical device company Arthrex in granting certiorari this morning, nearly a year after the Federal Circuit ruled that the unconstitutional appointment of the board’s judges made its rulings infirm. Skirting a federal law that prescribes how civil servants are to be removed, the court additionally ruled that the protections cannot be applied to administrative patent judges.

Over the next six months, the Federal Circuit vacated more than a hundred decisions by the board, at which point the chief administrative patent judge ordered that all cases be held in abeyance until the fallout from Arthrex could be settled by the Supreme Court.

Before the Federal Circuit intervened, patent judges were considered inferior officers, appointed by the secretary of commerce. There are more than 200 such judges — these roles now in limbo after the Federal Circuit said that they are principal officers whose appointment must be determined by the president only.

U.S. Solicitor General Noel Francisco disputed this characterization in his June petition for certiorari.

“If a judge fails or refuses to follow binding agency policy set by one presidentially appointed superior, another presidentially appointed superior may terminate the judge’s federal employment altogether,” Francisco wrote. “That ability, together with all of the secretary’s and director’s other prerogatives, leaves no doubt that administrative patent judges’ ‘work is directed and supervised at some level’ by presidentially appointed superiors.”

Per their custom, the justices did not issue any comment Tuesday in taking up the Arthrex cases. They did note that their focus will turn on questions set forth by the U.S. Solicitor General’s Office in a July memorandum.

“If the court affirms the Federal Circuit’s conclusion that administrative patent judges are principal officers, the determination of what provisions or applications of the relevant statutes may be severed to cure the Appointments Clause violation will have substantial practical importance for the USPTO and the board, and for many patent owners and other actors in numerous patent-reliant industries,” Assistant Solicitor General Jeffrey Wall wrote.

Jeffrey Alan Lamken, an attorney for Athrex at the firm MoloLamken, did not immediately respond to a request for comment Tuesday, nor did a representative from the Department of Justice.

Back in March when the Federal Circuit declined to rehear the Arthrex case, advancing its march to the high court, IPWatchdog founder and CEO Gene Quinn accused the Federal Circuit of failing the patent law industry.

“Clearly, the Federal Circuit panel that decided the Arthrex case overstepped its bounds and did not have the authority to turn Administrative Patent Judges into employees at will,” he said in a statement. “But at the end of the day that simply doesn’t matter. The Patent Trial and Appeal Board must be preserved at all costs and will be, either by Congress or a Supreme Court decision ratifying the original panel.”

In the underlying dispute, Smith & Nephew and Arthrocare persuaded the patent board to cancel Arthrex’s method for a “knotless suture securing assembly,” which is used in a device to hold body tissues together after surgery.

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