United States v. Arthrex Inc. [SCOTUSbrief]

Under the appointments clause of the Constitution, there are two types of executive officers: principal officers and inferior officers. The line between the two types of officers, however, is not always clear, and that ambiguity has sparked a question over whether administrative patent judges have been properly appointed by the Secretary of Commerce.

Are administrative patent judges principal officers or inferior officers? Prof. Aditya Bamzai of the University of Virginia School of Law discusses the appointments clause and administrative patent judges in United States v. Arthrex. Supreme Court oral argument is March 1, 2021.

JUDGMENT: June 21, 2021. Vacated and remanded, 5-4, in an opinion by Chief Justice Roberts on June 21, 2021. Justices Alito, Gorsuch, Kavanaugh and Barrett joined Parts I and II of the opinion, and Justices Alito, Kavanaugh and Barrett joined Part III of the opinion. Justice Gorsuch filed an opinion concurring in part and dissenting in part. Justice Breyer filed an opinion concurring in the judgment in part and dissenting in part, in which Justices Sotomayor and Kagan joined. Justice Thomas filed a dissenting opinion, in which Justices Breyer, Sotomayor and Kagan joined as to Parts I and II.

HOLDING: The unreviewable authority wielded by Administrative Patent Judges during inter partes review is incompatible with their appointment by the Secretary of Commerce to an inferior office.

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

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Follow Aditya Bamzai on Twitter: @adityabamzai

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Related Links & Differing Views:

Reason: “Supreme Court to Consider Constitutionality of Administrative Patent Judges”

Yale Journal on Regulation: “The Principal Officer Puzzle”

Stanford Law Review: “Who Are ‘Officers of the United States’?”

The Federalist Society: “Appointments Clause Back in the Supreme Court: Patent Office Judges as Principal or Inferior Officers”

Washington Legal Foundation Legal Pulse: “The PTAB Is Here to Stay, but Individual Administrative Patent Judges May Not Be”

National Law Review: “Administrative Patent Judges – You’re Fired (At Will and Without Cause)”

IP Watchdog: “It Matters: A Former Administrative Patent Judge’s Take on Arthrex”