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Inventors Reach Out to Supreme Court in Patent Board Judge Fight

Dec. 31, 2020, 10:55 AM

Inventors fed up with a Patent and Trademark Office tribunal tasked with reviewing patents are wading into a Supreme Court fight over the constitutionality of its judges.

“39 Aggrieved Inventors” are among the amici filing briefs in the Supreme Court in Arthrex Inc. v. Smith & Nephew Inc., a dispute over whether Patent Trial and Appeal Board judges were constitutionally appointed. Intellectual property rights, the brief argues, “are under attack by large corporations that are motivated to devalue patents and quell competition by small-entity patent owners purportedly protected by their patents.”

“The PTAB is a product of these large entities’ influence on legislation, as the briefest glance at the roster of amici curiae briefs filed in support of each side in this case makes plain,” the inventors said.

Numerous companies and interest groups have filed briefs with the justices in the Arthrex case, including frequent PTAB users like Apple Inc. In Arthrex, the U.S. Court of Appeals for the Federal Circuit found that PTAB judges had enough power to qualify as principal officers under the Constitution, meaning they should have been nominated by the president and confirmed by the Senate.

As a fix, the Federal Circuit stripped severance protections, as a means of rendering administrative patent judges (APJs) inferior officers appointable by the Commerce secretary, as is current practice.

Yet the inventors believe that if the patent board “is to continue as an extrajudicial mechanism making final agency decisions revoking patent rights, the Appointments Clause demands that the PTAB’s APJs be constitutionally appointed with advice and consent of the Senate.”

Bunch O Balloons inventor and PTAB critic Joshua Malone also filed a briefwith the justices, arguing that if patents are “to promote progress in the useful arts by securing to inventors like me the exclusive right to our inventions, revocations must be overseen by highly qualified, transparently vetted and independent Officers of the United States.”

“I urge the Court to rule that the role of an Administrative Patent Judge is that of a Principal Officer of the United States, requiring appointment by the President with the Consent of the Senate,” Malone wrote.

B.E. Technology LLC also filed a brief with the court, taking issue with a PTAB program for giving judges bonuses. The program “has severely tainted any semblance of justice,” B.E. said, urging the justices “declare the decisions by Patent Appeals Judges appointed in violation of the Appointment Clause null and void.”

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

To contact the reporter on this story: Ian Lopez in Washington at ilopez@bloomberglaw.com

To contact the editors responsible for this story: Renee Schoof at rschoof@bloombergindustry.com; Keith Perine at kperine@bloomberglaw.com

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