June 21, 2021


Rights of Inventors Harmed by Conservatives Decision to Give MORE Power to Key Political Appointee

US Inventor represents the interests of 300,000 small business inventors who have sought to protect their ideas with a United States Patent. Today the Supreme Court ruled in Arthrex v. Smith & Nephew that the administrative patent judges (APJs) who have invalidated thousands of patents under the 2011 America Invents Act did so in violation of the Constitution. The Court then proceeded to “forgive” this violation by re-writing the law.

Today, it was the conservatives who are guilty of judicial activism. Chief Justice Roberts was joined by Justices Alito, Kavanaugh, and Barrett in the decision to re-write the law by granting to the Director of the USPTO review authority which Congress declined to do.

Most importantly, this gives the USPTO Director – a political appointee – immense arbitrary power to decide who owns the rights to intellectual property valued in the trillions of dollars. Every election huge corporations and wealthy donors are seeking to get their friends appointed to this position, and block the rights of ordinary citizens and small businesses who seek to compete fairly with their ideas.

It is impossible for the Director to review the thousands of decisions that rob inventors of their hard-earned rights. Under this remedy – which is no remedy at all – the Director will only have capacity to review a handful of the erroneous and biased decisions. Certainly it will not be under-resourced inventors who benefit under this holding, but rather the wealthiest and most politically connected corporations.

Associate_Justice_Neil_GorsuchThe U.S. patent system used to be a gold standard that offered equal opportunity to ordinary citizens to compete in the marketplace based on the merit of their ideas. Today’s decision marks another in a string of decisions by the U.S. Supreme Court that has flipped our patent system upside down.

Today only mega-wealthy corporations with massive political influence can participate in the patent system, which no longer has any connection to inventing – or as the Constitution says “promoting progress in the science and useful arts.”

Our only advocate was Justice Gorsuch, who cited the amicus brief of the inventors and exposed the damage done to innovation and the rule of law by Congress and his colleagues on the Court.



For Media Inquiries Contact:

Josh Malone
Amicus and Policy Director of US Inventor

Randy Landreneau,
President of US Inventor