December 2, 2020

The Supreme Court granted certiorari in Arthrex Inc. v. Smith & Nephew Inc. to consider these two questions, which were raised in a Memorandum filed on behalf of the United States:

(1) For purposes of the Appointments Clause, are PTAB administrative patent judges (“APJs”) “principal officers” who must be appointed by the president with the Senate’s advice and consent, or “inferior officers” whose appointment Congress has permissibly vested in a department head?

(2) If APJs are principal officers, then did the CAFC properly cure any Appointments Clause defect in the current statutory scheme prospectively by severing the application of certain employment protections provided by 5 U.S.C. § 7513(a) to those judges?

The United States’ Memorandum also raised the question of whether the CAFC erred in adjudicating an Appointments Clause challenge that had not been presented to the USPTO.  The Court declined to take up this question.