Justices to consider appointments clause challenge to administrative patent judges - SC... - 0 views
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The primary issue is whether the administrative patent judges of the U.S. Patent and Trademark Office were unconstitutionally appointed in violation of the Constitution’s appointments clause.
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The answer turns on whether they are “principal officers” of the United States. If they are, the secondary issue is what to do about it. All three parties were unhappy with the U.S. Court of Appeals for the Federal Circuit’s decision and each petitioned the Supreme Court for certiorari.
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In the AIA, Congress created a new adjudicatory regime in which almost anyone could attack the validity of an issued patent. The AIA also created a board of administrative judges — the Patent Trial and Appeal Board — empowered to issue what the AIA termed final decisions on the validity of a challenged patent.
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But unlike Article III judges, and unlike the heads of executive branch agencies and other top officials who are appointed by the president with the advice and consent of the Senate, the patent judges are appointed by the head of a department (the secretary of commerce) “in consultation with” the head of their agency (the director of the USPTO).
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The Supreme Court agreed to consider two questions: (1) whether administrative patent judges are principal officers who must be appointed by the President with the advice and consent of the Senate, or instead inferior officers whose appointment Congress has permissibly vested in a department head; and (2) if they are principal officers, whether the Federal Circuit properly cured the appointments clause defect by severing the application of statutory tenure protection to those judges.