by Stephanie Lawley
Under a recent U.S. Supreme Court decision, the Director of the United States Patent and Trademark Office (USPTO) has authority to review final decisions of the Patent Trial and Appeal Board (PTAB).
PTAB decisions are rendered by a panel of Administrative Patent Judges (APJs). The Court held that because APJs are appointed by the Secretary of Commerce, they are “inferior officers” under the Appointments Clause of the U.S. Constitution. In contrast, the Director is a “principal officer” because the Director is nominated by the President and confirmed by the Senate.
The Court held that the lack of review of final PTAB decisions by a principal officer in the Executive Branch was unconstitutional. The Director cannot be prevented from reviewing decisions rendered by APJs.
U.S. v. Arthrex, case number 19-1434; Smith & Nephew v. Arthrex, case number 19-1452; and Arthrex v. Smith & Nephew, case number 19-1458, in the Supreme Court of the United States, decided June 21, 2021.
