Supreme Court May Find Patent Board Judges Unconstitutionally Appointed But Favor Narrow Fix

During oral argument in the Arthrex case, several justices seemed to agree with the Federal Circuit that PTAB judges should have been appointed by the president. They could opt to get around the problem by enabling the PTO director to review all panel decisions.

US Supreme court building with 1st statue on left
Supreme Court may issue fix on constitutional status of PTAB administrative patent judges • Source: Brenda Sandburg

Several US Supreme Court justices seemed inclined to find that the Patent Trial and Appeal Board’s administrative patent judges were unconstitutionally appointed, leaving their decisions open to review. But they also appeared to favor a fix that would not upend the PTAB system for reviewing patents.

The US Court of Appeals for the Federal Circuit ruled in Arthrex, Inc. v. Smith & Nephew Inc. that...

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