In United States v Arthrex, the Supreme Court held that 35 U.S.C. §6(c), which sets forth the authority of Patent Trial & Appeal Board (“PTAB”) Administrative Patent Judges (“APJs”), is unconstitutional because APJs effectively wield the power of principal officers (who require Senate confirmation) while being appointed as inferior officers (who do not require Senate confirmation).
The U.S. Patent and Trademark Office has begun charting its path forward for devising and implementing agency rules in response to the U.S. Supreme Court’s decision in United States v. Arthrex.
To resolve the inconsistency, the Supreme Court vested the USPTO Director, who is a principal officer, with authority and discretion to grant rehearing of PTAB Final Written Decisions (FWDs) regarding patentability of challenged patent claims. The Supreme Court held, “What matters is that the Director have the discretion to review decisions rendered by APJs. In this way, the President remains responsible for the exercise of executive power—and through him, the exercise of executive power remains accountable to the people.” You can read more about this topic on our Global IP & Technology Law Blog here.