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Supreme Court Rules on Constitutionality of Admin

JONES DAY TALKS®: Supreme Court Rules on Constitutionality of Administrative Patent Judges

The United States Supreme Court has delivered its decision in U.S. v. Arthrex, which determined whether appointments of administrative patent judges to the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB) were constitutional.

Jones Day’s Matt Johnson and John Evans talk about the background of the Arthrex case, how the decision could affect the way the PTAB operates, and the implications for parties with matters pending.

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Read the full transcript below:

Dave Dalton:

The US Supreme Court has rendered its decision in US v. Arthrex, Inc., which considered whether the administrative patent judges of the US Patent and Trademark Office's Patent Trial and Appeal Board, you know it as the PTAB, were constitutionally appointed. Matt Johnson and John Evans are here to talk about the decision and the implications for parties with matters pending before the PTAB, and John wraps up our discussion with a take on why this case is really about defining how our government works. Stick around. I'm Dave Dalton. You're listening to JONES DAY TALKS®.

Dave Dalton:

Matt Johnson is a registered patent attorney and has represented in ventures before the USPTO since 2006. He has drafted and prosecuted hundreds of patent applications directed towards software and hardware innovations, and many other technologies. Matt is the administrator of Jones Day's PTAB Litigation Blog, and you can find that at ptablitigationblog.com.

Dave Dalton:

And Dr. John Evans has handled all phases of patent litigation, from pre-litigation investigations all the way up to appeal. His technical experience in litigation matters covers a number of fields, including pharmaceuticals, surgical implants, flash memory, computer peripherals, digital televisions, integrated circuits, and insurance. Prior to law school, John obtained a PhD in biophysics at the University of Michigan, so go Blue. Matt, John, we're glad you're here today. Thanks for making some time for us.

Matt Johnson:

Hey, Dave. Thanks. Good to be here.

John Evans:

Thanks, Dave.

Dave Dalton:

Okay, Matt, let's go to you first. Give us some background on the Arthrex matter. This involved the Constitution's Appointments Clause, as it relates to administrative patent judges at the PTO. Do I have that close to right?

Matt Johnson:

Yeah, you have it exactly right, and this goes way, way back to the before times. Federal Circuit decision was back on October 31st, 2019, which likely, same for you, seems like eons ago.

Dave Dalton:

Yeah, it sure does.

Matt Johnson:

Yeah, but this is one of a series of constitutional challenges that we've seen to the PTAB and how it's been in practice since it was put in place back in September of 2012, and we've talked about some of those over the years. You remember we talked about Oil States some years back where we were wondering if the PTAB was constitutional and whether we'd all have to find new lines of work. And you remember Oil States came out and then where the Supreme Court said, "Yeah, PTAB is constitutional. You can go about your business," and then just a few minutes later, we got the SAS case from the Supreme Court on that same day where Jones Day successfully represent SAS in their appeal to the Supreme Court, and that case had a much larger impact than Oil States ever did. Oil States has kind of fallen to the wayside.

Matt Johnson:

But Arthrex is another one of those constitutional challenges to the PTAB, whether it's the PTAB pulling back patents that they've previously granted as an unlawful taking without compensation. Unsuccessful patent owners have tried over the years to think up a variety of reasons why the PTAB and its processes are improper. Here in the Arthrex case, an unsuccessful patent owner at the PTAB one who was unhappy with the decision canceling their claims said, "Hey, these PTAB judges are acting beyond their authority as permitted to them under the Constitution." The PTAB judges, those APJs, are certainly hired as inferior officers. According to the Constitution, they're not appointed by the president with the advice and consent of the Senate, so they're inferior officers. But the Arthrex patent owner said, "They're acting as principal officers. They're wielding the power and making decisions for an executive agency, and only principal officers are permitted to do that, so the APJs are acting beyond their authority."

Matt Johnson:

And the Federal Circuit agreed with him. They said, "Yeah, there's a bit of an issue here with the PTAB process. These APJs are going beyond their permitted authority, and so we have to do something here." And the Federal Circuit's fix was kind of interesting. They went and they adjusted some of the employment provisions, the statutory employment protections that APJs have. They tweaked those a bit so that the director, who is a properly appointed principal officer, had a little more power to fire those judges, maybe if they made decisions that the director didn't like. And so, they said, "That fixes the issue going forward now the judges have proper supervision and the PTAB can go on its way."

Matt Johnson:

The problem was, for the cases that already had final written decisions before October 31st, 2019, they said, "Well, those decisions were all by improperly acting APJs, so we have to send those back. We have to remand those to the PTAB and have them take another look, have a new panel, conduct a new oral hearing, and issue a final written decision." And that ended up throwing about 200 cases in limbo, where they've sat for the last, almost a year and a half, going on two years while the Supreme Court considered whether the Federal Circuit's decision in Arthrex was correct or not.

Dave Dalton:

Okay, so let's back up a second. You, John, Dave Cochran, everybody at the PTAB blog at Jones Day, you guys follow this stuff more closely than anyone. Did you see this challenge coming, I mean, regarding the authority's appointed judges? Was this a surprise, or do you know what the patent litigants are like, you maybe saw some, not holes exactly, but was is something that you guys thought, yeah, that could have happened, or was it maybe not what you expected?

Matt Johnson:

If you read the blogs and the commentaries and listen to presentations, there's been a series of complaints that folks have made about the PTAB and its structure and where it may be improper, and so there's a list of them. Like I mentioned, it's an unlawful taking. This Appointments Clause issue had been on the table. So definitely thought that folks would raise these issues, especially patent owners. Their patent claims are getting taken from them, so they're going to do what they can to try to rescue their valuable assets. So we knew these arguments were going to come up and were going to at least be considered by the appeals courts at some point. I'm not sure if I was confident that this one was going to get as much traction as it did at the Federal Circuit, but it was on the list of PTAB complaints that I've seen running around the internet and presentations over the last nine or so years.

Dave Dalton:

Okay, and I remember some of those alerts and commentaries you'd written. In fact, we'll tag those on this podcast, and for people interested, that's ptablitigationblog.com, if you're interested. That's updated at least twice a week. There's all sorts of information coming, in terms of what the PTAB is up to, but regarding this case, there's a lot of valuable information there too.

Dave Dalton:

Let's go over to John for a second. John Evans, this is your first podcast with us, isn't it?

John Evans:

It is. I'm a rookie. Thanks very much for having me on.

Dave Dalton:

There are no rookies here. Hey, thanks so much. It's been a pleasure. I'm looking forward to hearing your remarks today. So let's pick up where Matt left off. This Arthrex matter ends up at the US Supreme Court, so how did the court rule? What happened?

John Evans:

So thanks again for having me on the pod, Dave and Matt. It's really great. I've enjoyed every one of them, and honored to be part of this one. In the Supreme Court, the court found that the APJs were exercising principal officer authority because their final written decisions were not reviewed by anybody before going on to appeal on the Federal Circuit. And so, what that means is, the scope of their authority to basically be the voice for the US Patent Office violated the Appointments Clause because, as Matt stated earlier, APJs are not appointed by the president and approved by the Senate.

John Evans:

So that's the problem, and they basically agreed with the Federal Circuit that there was a problem and some prior academic commentary about the issues with the way that APJs were exercising authority over patents. As Matt said, we'd seen some of these issues percolating in the commentary and the general rumblings with people's dissatisfaction with how the PTAB was handling patents.

John Evans:

So that's the problem. What's the solution? As Matt said, the Federal Circuit decided to fix the issues in a decision, dated October 31st, 2019. And there's a reason why all of us know that day very well. It's because a lot of us were handling appeals or IPRs when the Arthrex decision came down, and this really threw a procedural monkey wrench in how we think about those cases were handled and how to frame the issues on appeal, so Halloween 2019 is a day that lives in infamy in the IPR practice history.

Dave Dalton:

Trick or treat.

John Evans:

Yeah, exactly. The Federal Circuit, as Matt said, decided the remedy was to fix the issues with the way that APJs were hired and the ways that they could be retained, and then to remand to the USPTO for assignment to a new panel and a new hearing, et cetera. The Supreme Court didn't like that remedy. They fashioned a different one. In the Supreme Court's view, the problem wasn't so much the appointments of the individual APJs. More so, it was a structural problem that the APJs were issuing the final and authoritative word on behalf of the patent office that went up to the Federal Circuit, and the problem was that they are not appointed by the president and approved by the Senate.

John Evans:

And so, they decided that the proper remedy wasn't to remand back to the PTAB for another hearing, it was to send it back to the director of the patent office, who in some instances, and most of the time, is somebody who is appointed by the president and approved by the Senate. There's a little wrinkle there because the director of the patent office is actually a rotating position, each incoming administration. So for example, the Biden administration will appoint a new director of the USPTO and the Senate will approve that person. Right now, we don't have one. Former director, Andrei Iancu, has resigned and the PTO is currently operating under acting director, Drew Hirshfeld, so I'm going to just flag that one because it may become important later.

John Evans:

But ultimately, the Supreme Court decided that we don't want to make the APJs' final written decisions the final word of the patent office. We're going to send it back to the director for discretionary review of the APJs' decisions.

Dave Dalton:

I'm going off what we said we'd talk about, but the acting director is Mr. Hirshfeld, you said?

John Evans:

Yes, that's right. Drew Hirshfeld.

Dave Dalton:

Boy, I shouldn't even ask, but I'm going to, because we live on the edge here sometimes at JONES DAY TALKS®. Is he in the mix to become the permanent director, or is he a placeholder, or do we not even know? I'm just wondering what this guy's background is and what to maybe expect. Is he a candidate, do you think?

John Evans:

Sure. Well, I would say that from the outside, looking in, and I'd be interested on Matt's thoughts on this as well, from the outside, looking in, I would think he would be in the mix, but there are decisions that are made inside the patent office and among political parties that we may not be party to, so I think it's hard for us to say.

Dave Dalton:

Yeah, and Iancu had his fans, certainly, a decent legacy. And you never know what the new administration will do, and it's their call, of course, but I know that these things take on a almost mythical status, these appointments, and so forth, and who's coming in, and how might things change, especially the flip from the current administration. So that'll be an interesting dynamic to watch. That's probably a call for another program once that permanent appointment is made.

Dave Dalton:

Let's go back to Matt. Matt, practically speaking, how does what John reviewed for us change the way the PTAB operates, and what are the implications for parties with matters pending before the PTAB right now?

Matt Johnson:

Dave, so the impacts at the PTAB, on a going-forward basis, are really going to be a lot less than what they could have been. One possible outcome of the Supreme Court's decision could have been to say, "PTAB judges are all improper, and all decisions that they've made in the past are void, and the PTAB needs to be totally restructured by Congress to even exist, going forward." And it could have been a pretty dramatic impact depending on how the Supreme Court decided to deal with this. Ultimately, what it's going to be is largely business as usual at the PTAB, at least for the going-forward cases. We'll talk about some pools of cases here in a moment, I think, those cases that have been in limbo over the last couple years.

Matt Johnson:

But going forward, the director is going to have the discretion to review any final written decision, so he is the last word coming out of the PTAB. And the patent office is going to put some procedures in place for parties to request review by the director and to flag the issues they want the director to review because... And there are hundreds and hundreds of this final written decisions coming out of the PTAB each year. It's not really practical for him to look and flyspeck each one of those, so there's going to be procedures put in place to facilitate those reviews. But the director is going to have the ability to view each decision. A lot of those will be probably rubber stamps of the panel's decisions. But beyond that, there's not going to be nearly the dramatic ripples and waves at the PTAB that there could have been, depending on how the Supreme Court came out.

Dave Dalton:

Okay. You used the word discretion, Matt. So the director doesn't have to, he can. If he's asked to or if one of the parties to the matter requests, then must he, or how's that left?

Matt Johnson:

The Supreme Court's opinion in Arthrex explicitly said, "The director is not required to review every case. He just has to have the ability to review," and that gives him sufficient oversight. So parties can think and will be able to request review, and the director just... He may just say, "In my discretion, I decided not to review this case," and that's sufficient. He just has to have the option to do that, either on his own or on request of a party.

Dave Dalton:

Okay, okay. Real good. Now, you mentioned pools of cases. Let's go back to John to get this started. In some of the notes, and you guys are always very kind in terms of getting me information and materials to prepare for this, but in some of the notes you sent over, you identified three pools of cases that we should talk about with respect to the Arthrex decision. John, can you take us through these three pools of cases, what they are, what they mean, significance, and so forth? Tee it up for you. Go ahead, and Matt, please jump in too.

John Evans:

Thanks, Dave. So there are three buckets of cases, and I'll get into those in just a second. I just want to give a little background for how those buckets came to be. We mentioned earlier that the Federal Circuit, I would call it a watershed decision, on October 31st, 2019, changed the way we think about appointments of APJs and how we frame our litigating and appellate strategy. And we know what the Supreme Court said to do in the Arthrex case itself, right? They said, "We want to send this back to the director for discretionary review." The issue is, what do we do with all the other folks who challenged the constitutionality of the APJs under Arthrex in pending appeals, based on final written decisions that came in after the Federal Circuit's Halloween 2019 decision? It's a really complicated question because every day, every fact matters when you're thinking about procedural strategy.

John Evans:

And so, things changed on October 31st, 2019, so as I said, on November 1st, you had to think about, do I raise an Arthrex challenge? When do I do it? How do I do it? Do I do it in front of the PTAB? Do I do it in the Federal Circuit on appeal? Do I do it in an opening brief? Do I do it in my motion, and by way of motion, in an appeal? Now, see, these are all very complicated procedural questions, and they matter for how you present the challenges and how you frame them up, et cetera. So that was one of the things that we and many litigators and appellate lawyers were struggling with over the last year and a half, two years or so.

John Evans:

After the Supreme Court decision came out, what the Federal Circuit did was interesting. It issued an order in 120 pending appeals that involved Arthrex challengers, litigants, usually patent owners, who were challenging the appointments of the APJs in one way or another, by motion or in their opening appellate brief, et cetera. And they said, "Okay, Arthrex challengers, we want you to file a brief telling us how you think this appeal should proceed in view of what the Supreme Court has done," and then it also gave the other parties, including the United States Patent and Trademark Office...

John Evans:

The solicitor of the USPTO is often a participant in the Federal Circuit appeals to defend the constitutionality of the APJs' appointments and so forth. We have three party appeals, and as anyone will tell you, once you have more than two parties in a litigation, it gets very complicated, very quickly. So basically, the Federal Circuit said, "Well, what do you guys think we should do," right?

Dave Dalton:

John, is that unusual? Forget patent law for a second. Will a court, at that level, go to the litigants and say, "Hey, what do you guys think?" As a lay person, that sounds unusual to me. Am I wrong?

John Evans:

It's not unprecedented. The fact that it's over 120 different cases though, is unusual, and I think it reflects the new waters that we're charting here. And I think the Federal Circuit, I can't, obviously, speak for them, but it was a clever move because that makes the applicants put on paper what they think the procedure should be. And so, when you do that, it gets harder to say, "Well, Federal Circuit, you should have done something differently," because they can point back to these briefs and say, "Well, this is how you wanted us to handle it. We either agreed or disagreed."

Dave Dalton:

Okay, I get it.

John Evans:

Yeah, so I've had it happen in particular cases where there's an issue that the Federal Circuit didn't think the individual parties had briefed or addressed. It's less common to see it for 120 at a time.

Dave Dalton:

Okay, okay. Sorry to jump in. I just had to ask before I forgot, but please continue. You were rolling.

John Evans:

Oh, yeah, sure. It was a great question, great question. Lots of good questions, Dave, really helping us flesh out the issues here. So the Arthrex challenger briefs are... They're all filed now, they're all in, and responsive briefs will be filed by the end of next week. And what we did was, we took a look at all 120 appeals. We pulled all the Arthrex challenger briefs and we put them into the buckets that you mentioned earlier, and as you mentioned, there are three. Two are more interesting than the third. The third one, that's the least interesting, is the Arthrex challengers just didn't file anything. They let the deadline come and go. They just said, "No comment." In some of those cases, there are petitions for certiorari to the Supreme Court. Those are low percentage shots, so we'll see how those play out.

John Evans:

But for the most part, there are two buckets, one where the Arthrex challengers said, "Let's just go to the merits," and the other where the Arthrex challengers said, "We want that remand. The Supreme Court said we were right, these APJs aren't properly appointed. We want our remedy under Arthrex." And we dug a little deeper into all of those 120 briefs, because you can imagine, with 120 litigants, every litigant's position is slightly different. And we tried to identify a couple of the trends, and those trends were interesting.

John Evans:

So if we look in the merits buckets, about 60% of the Arthrex challengers said they wanted to go to merits, which means most of them wanted just to go to the merits and don't worry about the Arthrex challenge, at least not explicitly, and more than half of them expressly waived their challenge. They told the Federal Circuit, "We're waiving this Arthrex challenge. We're not pursuing it further." And that could be that they saw the remedy from the Supreme Court, was to send it back down for discretionary review, as opposed to a new hearing and new decision, and just decided the game wasn't worth the candle.

John Evans:

About a half of the challengers who said, "We should go to the merits," they were a little cagey or they said, "Okay, well, let's go to the merits," but they didn't really expressly waive their Arthrex challenge, and so they might be trying to keep that powder dry to raise it later. This is kind of a have my cake and eat it too argument. We'll see how it comes out on the merits and then maybe raise the procedural arguments later.

Matt Johnson:

Hey, John, doesn't that seem tough, though, they're going to ask for the director to take another look at a case after the Federal Circuit says the PTAB got it right?

John Evans:

Yes, exactly. Thanks, Matt, for pointing this out. We found one brief that was really on the extreme end, where the challenger came right out and said, "Okay, Federal Circuit, there are two paths. I want you to decide the merits and reverse on the merits, just like I said, because I think the PTAB got it wrong. But if you disagree with me on the merits and you affirm the PTAB on the merits, then I want you to get to the constitutional issue." And Matt and I were talking about this and thinking, this is really the have my cake and eat it too argument. They came right out and said what they want. If I win, don't worry about it. But if I lose, I want you to send your decision on the merits, back down to the director, to review the merits again, and then maybe come back here on appeal.

John Evans:

And so, Matt and I were thinking, okay, if the director is bound to follow the Federal Circuit's merits opinion, why send it back to the director for discretionary review of how he... He already knows what the Federal Circuit's thoughts are on the merits. It seems like it's a feedback loop or a trail that ultimately isn't likely to go anywhere, and it also invites the Federal Circuit to issue an advisory opinion, which we'll see how they respond to that.

Dave Dalton:

Sure, sure. I mean, I'm not even a lawyer and I'm scratching my head. It's like you said, have a cake and eat it too. I think that's generous. In terms of assessment, it's almost disingenuous, but I shouldn't use words like that, but okay, all right. So let's move on to the remand bucket. Tell us about that, John.

John Evans:

Yeah, yeah. Thanks, Dave. So about just under half of the challengers, about 40%, said, "We want that remand." They want a remand back to the patent office. It's also interesting, about half of the remand requests said, "Let's go ahead and remand to acting director Hirshfeld for director review. We don't want to wait. Send it back down right now." And that raises some issues because acting director Hirshfeld, of course, has not been appointed by the president and approved by the Senate, so it seems like they're solving one Appointments Clause problem by creating another. There's an argument there that that could be something that we'll see play out. We'll have to see how the Federal Circuit responds to those arguments before we can make any predictions, of course.

John Evans:

The other half said, "Well, let's just wait until a new director is appointed and approved, and then we can remand them." That's, by and large, most of the responses in the remand bucket. And as Matt mentioned earlier, there are many disgruntled patent owners who really don't like that the PTAB has taken away their patents. And there were a few extremists that said that the PTAB decision should just be vacated, no remand, call it a day, it can't be fixed. And of course, that's the result every disappointed patent owner wants in an IPR appeal. It's probably unlikely.

Dave Dalton:

Going slightly into the weeds here, we've talked about the acting director, Hirshfeld, a couple times. Is there a timetable for a new director coming onboard, or is it when the president gets to it and Senate gets to approving it? I mean, it's been, what, January, we're coming up on seven months now. Is this a priority? I'm wondering why this isn't happening yet. I know there are dozens, if not hundreds of these things to do, but this is a high-profile area. Any idea when this might happen?

Matt Johnson:

I'd hope, soon. Apparently, wasn't a first six months priority, but maybe a second six months priority. I mean, I think the director sets a policy direction for the patent office. We talked before, director Iancu really put some effort into making the patent office a patent owner friendly place, and it's important for the office to have a director in place and setting the direction. So I'm hoping it's soon so that we can have some more predictability about how the patent office is going to operate over the coming years because depending on who the director is, their background, and their views on the patent system, things could go in starkly different directions.

Dave Dalton:

Sure. And Matt, whatever the subject matter, as you and I have done these programs over the last few years, that term, predictability, that word always comes up, in terms of the patent office and who's making these sorts of decisions and so forth, so that is so important. You've got an economy that's ready to explode, I think. I mean, it's going well already, but it'd be nice to have somebody driving, and you know where policy is going and where decisions might go. Matt, let's stay with you, all right. With all this with Arthrex, what happens next? Do you expect more activity on this front before this new director we've been talking about is appointed, or what do we look for in the near term?

Matt Johnson:

John talked about what's going on in the Federal Circuit, the cases that were still on appeal there. We have two other sectors of cases that are Arthrex affected. We have the cases that the Federal Circuit's already remanded to the PTAB, over a hundred cases that have just been sitting for the last year and a half at the patent office. I think the patent office is, in the pretty near term, going to put together some procedures for how those parties or those patent owners should... for a review of their final written decisions by the... They're probably hoping for new oral arguments and getting all geared up to present their case to a new panel.

Matt Johnson:

But now they're going to have the ability to ask the director whether he wants to exercise his discretion to review their cases or not. I think most of those are probably going to be rubber stamp approvals of the original decisions, but we'll see. There may be some short briefing for the complaining party to highlight issues for the director to consider, but the office, whether that's before or after a new director is in place, it remains to be seen, but the office is going to have to burn through those cases.

Matt Johnson:

And then there's the going forward cases, the cases that get final written decisions after the Supreme Court's decision in Arthrex. Those unhappy parties will have the ability to request review by the director of the final written decisions, and the PTAB, the patent office, has put in preliminary procedures for requesting that review already. They presented those at a presentation a couple of weeks ago now where they are going to treat those requests for review, similar to the rehearing procedures that already exist, where a party who wants to request a director to review will file a short brief asking for rehearing of the final written decision. And then they'll send an email to a special PTAB email address saying, instead of having the panel do this rehearing, we'd like the director to consider exercising his discretion and to do the rehearing himself.

Matt Johnson:

So that procedure is in place. Whether those decisions will be made, ultimately, before or after a new director is appointed and confirmed, that is all that's in the patent office's court. But regardless, the going forward path, at least preliminarily for litigants in that pool of cases, is at least somewhat better defined.

Dave Dalton:

Matt, how are clients handling some of this stuff? I mean, you went through COVID, remote hearings. Now, we've got an acting director. Now, here's this Arthrex decision. Again, we're going into the weeds a bit here, but what are clients concerned about right now? What are they asking you?

Matt Johnson:

With this job, it's always, like you said, to predict the future, to tell me how this is going to play out. These cases are kind of high-stakes games of chess, so if we do this, what's the other side, what's their counter-argument, and how is the PTAB likely to decide? So it's always pulling out that crystal ball and trying to predict the future. At least here, it looks like, and just thinking practically, the director, hundreds of cases come across his desk now, that he's going to have to exercise his discretion on. You're thinking, yeah, that's likely going to be a rubber stamp decision approving the panel's decision in most of those cases, just because practically, how's one person going to practically consider all of those cases and give thoughtful decisions on them?

Matt Johnson:

So I think we have a little bit more clear path now after the Supreme Court decision than if we were going to have 200 plus cases with new oral hearings and new final run decisions, and that's a roll of the dice in all of those cases. So on some level, I think we have a little more predictability here. We have procedural paths that I think are going to be pretty well-defined, so overall, this is going to be somewhat back to the business as usual with a few tweaks and a bit more clarity and predictability at the PTAB. So at least for someone who's into the weeds on PTAB procedure and trying to read that crystal ball, I'm able to sleep a little easier at night these days than I was six months, a year ago.

Dave Dalton:

Well, I like hearing that, and I know your clients like hearing that, so that's terrific. Hey, John, let's wrap up with this. Anything else listeners should be aware of right now in the aftermath of Arthrex, anything you want to tell them before we sign off here?

John Evans:

A lot of times when we practitioners get really excited about these cases, there's a method to our madness. You could look at Arthrex as a very dry case. It's about esoteric appointments issues that a handful of constitutional law professors might get really excited about. And to some extent, that's a fair read of the facts of Arthrex, but as I've looked at all these decisions, and really thought about it and really tried to engage with the issues here, there's some deeper themes here that are worth thinking about. As I've come to understand, this case is really about defining how our government works, so this case really goes a long way to ensure that the USPTO, the director, and all its employees are accountable for what the USPTO does and how it does it.

John Evans:

And that accountability has two levels that were written into the constitution hundreds of years ago. You've got the direct accountability to the executive, the president who appoints the director, and then you've got the approval by the Senate, right? So the second level is the indirect accountability to the voters, the people who elect the senators, who approve everybody, as well as to the president who appoints them. And so, this is one of the instances that really proves the genius of the constitution and the structure of our government, because in the end, I think this case means that the USPTO and the patents that it examines will be stronger and better and higher quality for having gone through all of this.

Dave Dalton:

You know what? I think we got to end this right there. That's a great point, and I think you summed that up very well and took this to a different level that I wasn't quite expecting. But John, that was great, so thank you so much. Thank you both for being here today. We will check out the PTAB Litigation Blog, and we'll note that at the bottom. As people open up this podcast on their laptops or desktops or phones, they'll be taken straight to the PTAB Litigation Blog if they'd like to do that. So, Matt, John, thank you so much for being here today. We'll talk again soon. We do this once about every three months or so, and we're looking forward to the next one. So Matt, John, thanks so much.

John Evans:

Thanks, Dave.

Dave Dalton:

Take care. Be sure to visit Jones Day's PTAB Litigation Blog at ptablitigationblog.com. Matt, John, Dave Cochran, and a number of other Jones Day lawyers with deep knowledge in this area update that blog constantly, so bookmark it if you can. You can find complete biographies for Matt Johnson and John Evans at jonesday.com, and be sure to visit our insights page where you'll find compelling and useful content like white papers, client alerts, videos, more podcasts, and industry-focused newsletters. Subscribe to JONES DAY TALKS® on Apple Podcasts and wherever else you find your podcasts. JONES DAY TALKS® is produced by Tom Kondilas. As always, we thank you for listening. I'm Dave Dalton. We'll talk to you next time.

Speaker 4:

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