Nothing has dominated the U.S. Patent and Trademark Office (PTAB) world like the Arthrex decision. Since October 2019, we have posted seven times about Arthrex and its progeny decisions. Now comes more.

On October 13, the U.S. Supreme Court granted certiorari in case numbers:

19-1434    United States v. Arthrex, Inc., et al.

19-1452    Smith & Nephew, Inc., et al. v. Arthrex, Inc., et al.

19-1458    Arthrex, Inc. v. Smith & Nephew, Inc., et al.

The questions accepted for review are as follows:

  1. Whether, for purposes of the Appointments Clause, U.S. Const. Art. II, § 2, Cl. 2, administrative patent judges of the PTAB are “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. Whether, if administrative patent judges are principal officers, the Court of Appeals properly cured any Appointments Clause defect in the current statutory scheme prospectively by severing the application of 5 U.S.C. 7513(a) to those judges.