Supreme Court Argument in Patent Judges Fight Set for March 1

The U.S. Supreme Court will hear oral argument March 1 in a case over the constitutionality of Patent Trial and Appeal Board judge appointments.

In Arthrex Inc. v. Smith & Nephew Inc., the U.S. Court of Appeals for the Federal Circuit found that PTAB judges appointed by the Commerce secretary wielded enough power to warrant presidential nomination and Senate confirmation.

The case is being closely watched by patent owners and companies that want to invalidate patents.

The Federal Circuit decided to strip certain job protections from the judges as a way of making them appointable by the Commerce secretary. The Federal Circuit also undid some PTAB decisions under Arthrex and called on the patent office to reconsider the cases with new panels of judges.

The patent office is waiting on the Supreme Court before redoing the decisions.

If the justices decide that PTAB judges are principal officers, they would determine whether the Federal Circuit’s remedy fixed the constitutional problem.

The case is: U.S. vs. Arthrex et al., U.S., No. 19-1434.