UNITED STATES OF AMERICA, Petitioner, v. ARTHREX, INC. ET AL., Respondents. Case No. 19-1434, 19-1452, amicus brief filed 12/2/2020. December 2, 2020

The American Intellectual Property Law Association filed a consolidated amicus brief in support of reversal with the Supreme Court today in United States of America v. Arthrex, Inc. et al., Smith & Nephew, Inc., et al. v. Arthrex, Inc., et al., and Arthrex, Inc. v. Smith & Nephew, Inc., et al., Case Nos. 19-1434, 19-1452, and 19-1458, respectively, regarding the appointment of Administrative Patent Judges (APJs) under the Appointments Clause of Article II of the U.S. Constitution. In the case below, the Federal Circuit determined that APJs are unconstitutionally appointed principal officers based on the application of a three-factor test. AIPLA’s brief supports reversal of the Federal Circuit’s decision and argues that Supreme Court precedent does not support such a rigid, factor-specific approach, instead favoring a flexible analysis to assess whether an officer is “principal” or “inferior.” The brief explains that, while the question is a close one, the totality of the circumstances under this flexible approach supports finding that APJs are inferior officers who are constitutionally appointed.

The brief also notes that reversal would moot the need for any remedy and provide the least disruption to the patent system as a whole. The brief explains that the Federal Circuit’s chosen remedy – severing application of Title 5’s federal employment removal protections to APJs and ordering the rehearing of each affected case before a new panel – risks creating significant uncertainty, delay, and lack of transparency and accountability in the patent system, which would be contrary to Congress’ intent in establishing the role of APJs and the Patent Trial and Appeal Board.