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UPDATE: Did the Supreme Court's 'Arthrex' Decision Open Pandora's Box?
In June 2021, the Supreme Court issued its decision in U.S. v. Arthrex, Inc., Nos. 19-1434, 19-1452, 19-1458 (June 21, 2021) (slip opinion). Authored by Chief Justice Roberts, the Court ruled that the statutory scheme appointing Patent Trial and Appeal Board (PTAB or Board) administrative patent judges (APJs) to adjudicate IPRs violates the appointments clause of the U.S. Constitution. Specifically, the Court concluded that because APJ decisions in IPR proceedings are not reviewable by a presidentially appointed and Senate-confirmed officer, such determinations are not compatible with the powers of inferior officers.
The Court, in what it viewed as the narrowest possible remedy to cure the constitutional defect, declared that all IPR final decisions made by APJs must be subject to review by the Patent and Trademark Office (PTO) director, who is nominated by the president and confirmed by the Senate.
Subsequently, the PTO set up an interim procedure for parties to challenge a PTAB ruling, providing the ability to seek either director review or rehearing before the three-judge PTAB panel that originally heard the case. Note: Parties may still choose to appeal directly to the Federal Circuit instead.
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