Last month in U.S. v. Arthrex, the Supreme Court held that there was a serious constitutional flaw in the organization of the Patent and Trademark Office (PTO). Although the Court’s decision was ostensibly a win for political accountability, that victory will be hollow until the Court closes a loophole of its own creation.
Arthrex concerned a group of adjudicators called administrative patent judges (APJs). By statute, APJs had unreviewable authority to make key decisions: whether to cancel challenged patents. Once the APJs made their decisions, no one else in the executive branch could review or reverse them. Losing parties’ only recourse was to appeal to the federal court system. Arthrex, a medical device company, was such a losing party. After one of its patents was cancelled by a panel of three APJs, Arthrex argued in federal court that this statutory scheme was unconstitutional.
The Supreme Court agreed with Arthrex. As the Court explained, APJs are neither nominated by the president nor confirmed by the Senate. Instead, they are appointed by the Secretary of Commerce. But the Constitution only permits cabinet secretaries to appoint “inferior” officers. And the APJs’ unreviewable authority within the executive branch, the Court held, was incompatible with “inferior” status.
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