Are Patent Judges Unconstitutional? The Arthrex Case Explained

From tech giants like Alphabet Inc.'s Google and Apple Inc., to pharmaceutical giants like Canada’s Apotex Inc., industry titans facing infringement lawsuits turn to the Patent and Trademark Office’s Patent Trial and Appeal Board to invalidate their rivals’ intellectual property.

But in Arthrex Inc. v. Smith & Nephew Inc., the U.S. Court of Appeals for the Federal Circuit found a flaw in that process that has upended dozens of patent fights: the constitutionality of how the tribunal’s judges are appointed.

Now, the U.S. Supreme Court is poised to determine whether the Federal Circuit’s fix, which has left the validity ...