Partner George Quillin was quoted in a BioWorld article, “Supreme Court grants cert to three iterations of Arthrex appointments question,” about a pending Supreme Court case over the appointment of administrative patent judges (APJ) to the Patent Trial and Appeal Board (PTAB).
Quillin said the Supreme Court could affirm the decision by the Court of Appeals for the Federal Circuit, which held that the America Invents Act, which gave the Secretary of Commerce the authority to appoint APJs, violated the Appointsment Clause of the U.S. Constitution, though that raises the question why it would agree to hear the case.
He also said it wasn’t clear why Congress drafted the statute to make APJs principal officers in the first place. “I’m not sure Congress thought very deeply about that,” he said.
The Supreme Court could also declare that the PTAB’s APJs are already inferior officers, though that is unlikely, Quillin said. “It’s a close enough question that there are arguments both ways,” he added.