U.S. Supreme Court justices indicated they might curb the power of the board that has invalidated more 2,000 patents, hearing a constitutional clash being closely watched by the nation’s technology companies.
In a 90-minute telephone argument, members of the court’s conservative wing suggested they thought
“These are multi-million, sometimes billion-dollar decisions being made not by someone who’s accountable in the usual way that the appointments clause demands,” Justice
A decision ordering changes to the board, known as PTAB, could have broad ramifications. Many of the nation’s largest technology companies, including
The appointments clause, which requires “principal officers” to be nominated by the president and confirmed by the
Monday’s arguments suggested at least five of the court’s conservatives were prepared to say the patent board’s setup violated the appointments clause. Justice
How to Fix
The tougher question for the conservatives might be what do about the constitutional problem. A lawyer representing
But Kavanaugh said the court was typically loath to “take down the whole system.” He and Justice
Arthrex’s opponent in the case,
That argument drew support from the court’s liberal wing. Justice
“It’s clear that APJs are not policy makers,” Sotomayor said, referring to the judges. “All of the policies are vested in the director.”
‘Death Squad’
The Supreme Court said in a 1997 case involving Coast Guard judges that inferior officers are people “whose work is directed and supervised at some level by others who were appointed by presidential nomination with the advice and consent of the Senate.”
The term “death squad” was coined by
The PTAB already survived one challenge at the Supreme Court. In 2018, justices found the panel wasn’t unconstitutionally wielding powers that belong to the courts.
The court is scheduled to rule by late June. The lead case is U.S. v. Arthrex, 19-1434.
(Updates with excerpts from arguments starting in third paragraph.)
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Elizabeth Wasserman
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