Supreme Court

Arthrex: Supreme Court Asks "Who’s The Boss?", PTAB Litigation Blog

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On March 1, 2021, the Supreme Court heard oral arguments in Arthrex v. Smith & Nephew, No. 19-1434, on March 1, 2021, asking whether the appointment of PTAB judges is consistent with the way that “Officers of the United States” are supposed to be appointed under Article II of the Constitution.  Argument was scheduled for one hour, but ended up going more than 30 minutes over time, with the Justices asking many pointed questions examining the distinction between “inferior” and principal officers under the Constitution, and how much supervision of an officer is enough to make the officer “inferior.”  The reason this matters, it turns out, is that principal officers have to be appointed by the President and confirmed by the Senate, whereas “inferior Officers” can be appointed by the heads of cabinet departments, without presidential or Senate involvement—which is how PTAB judges are appointed.

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