Arthrex: Unreviewable APJ Authority Incompatible with Appointments Clause, PTAB Litigation Blog

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In United States v. Arthrex Inc., the U.S. Supreme Court agreed with the Federal Circuit that the pre-Arthrex Patent Trial and Appeal Board (PTAB) regime of Administrative Patent Judge decisions being insulated from executive review is incompatible with the Appointments Clause of the Constitution and therefore unenforceable as written.  But the Court diverged from the Federal Circuit on the rationale for this constitutional violation and the appropriate remedy to save it.  The opinion, authored by Chief Justice Roberts, applied the severability doctrine to portions of the statutes at issue and held that certain sections were unenforceable because they prevented the Director of the United States Patent and Trademark Office from reviewing final decisions made by APJs.  While most Justices agreed with the judgment, some did not see eye to eye on the remedy.  With its ruling, the Court vacated the Federal Circuit’s Arthrex judgment and remanded the decision to the Director.

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