In United States v. Arthrex, the Supreme Court Delivers A Seemingly Simple Solution That May Prove More Complicated in Practice

This week, in United States v. Arthrex, Inc., the Supreme Court vacated and remanded a decision by the Court of Appeals for the Federal Circuit (“the CAFC”), holding that the administrative patent judges (“APJs”) at the Patent Trial and Appeal Board (“the Board”) are unconstitutionally appointed. While the CAFC came to the same conclusion as the Supreme Court, the CAFC’s response was to make APJs removable at will by the Secretary of Commerce. In the Supreme Court’s words, the CAFC’s solution “satisfied no one.” The Court, in a plurality decision, formulated its own solution: grant the Director of the United States Patent and Trademark Office (“the Director”) the power to review the decisions of the APJs.

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