The U.S. Supreme Court will consider the constitutionality of administrative judges that review the validity of issued patents, seeking to clarify a lower court decision that critics say has caused “havoc and confusion.”
The high court agreed to review whether judges with the Patent Trial and Appeal Board were unconstitutionally appointed with too much authority. An appeals court found that PTAB judges had such power over patents that they should be nominated by the president and confirmed by the Senate or, alternatively, be allowed to be fired without cause.
Created by Congress in 2011 as a faster and cheaper alternative to litigation in federal courts, PTAB’s power to invalidate patents has long been controversial. Patent owners and critics have called it a “death squad” for the high rate of patents being canceled, and have launched a
The decision has caused “havoc and confusion, resulting in over 100 otherwise unassailable final written decisions by the PTAB being summarily vacated and remanded to be reheard unnecessarily, the wasting of valuable party and court resources,” Askeladden LLC
The federal government contends that the roughly 260 administrative patent judges are constitutional as they are appointed by the Commerce secretary and must operate under rules set by the director of the U.S. Patent and Trademark Office, both Senate-confirmed positions.
“The court of appeals has unwound the significant efforts of the agency and the litigants in the administrative proceedings -- often spanning a year or longer -- to determine the patentability of the challenged claims,” the Solicitor General’s Office wrote in the government’s Supreme Court petition.
The original case involved an
In addition to the government’s petition, Arthrex and Smith & Nephew each filed their own petitions. There are dozens more before the court that could be affected by its findings.
Other companies and organizations urged the Supreme Court to review the issues.
PTAB is popular with companies like
The drug industry has a love-hate relationship with PTAB. Drugmakers have
The lead case is U.S. v Arthrex,
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