October 13, 2020


Court to Determine Whether USPTO Patent Judges Require Senate Approval Under Appointments Clause of the U.S. Constitution 

(WASHINGTON, D.C.) – The hopes and dreams of inventors were rekindled today when the Supreme Court agreed to hear the case United States v. Arthrex, Inc., No. 19-1434. The case is the latest of many challenges to the Constitutionality of the Patent Trial and Appeal Board (PTAB), a division of the USPTO created under the 2011 America Invents Act. The controversial board has invalidated 84% of the almost 3,000 issued patents which they have reviewed. A lower court held that the Administrative Patent Judges (APJs) that constitute the board were selected in violation of the Appointments Clause of the Constitution, as they were not confirmed by the U.S. Senate as required. Inventors have raised concerns about the qualifications and biases of the 260 APJ’s, many of whom were selected while the former head of patents for Google was leading the USPTO during the Obama administration. The Chief APJ at the time quipped that it was their job to be a “death squad” for patents.

The USPTO & DOJ argued in the lower court that APJ’s are not Officers of the United States who require Senate confirmation because the USPTO Director exercises sufficient control over the APJs. An example cited is panel-stacking, whereby the Director assigns additional APJ’s to a rehearing until they muster enough votes to override the first decision. The lower court did not accept those arguments, so the USPTO & DOJ have asked the Supreme Court to resolve the controversy.

In 2003 Gene Luoma of Duluth, Minnesota was granted patent US 6,775,873 for his Zip-it drain cleaner, a 2-foot long flexible plastic wand with barbs along the edges. When the wand is shoved down the drain and pulled back up, the barbs latch onto the hair and pull it out, leaving the drain clean. Other companies copied his design and filed a request at the USPTO objecting to the patent. A panel of 3 APJs at the USPTO invalidated the patent, holding that it was too similar to a drain-cleaning device from 1906.

In 2019 inventors David McKnight and Ray Perkins of High Point, North Carolina were granted patent US 10,221,088 for their extended-release fertilizer solvent, reducing runoff pollution by millions of pounds and stemming algae blooms and red tide. The patent was signed by the current Director of the USPTO following a rigorous two-year examination. Yet, a panel of 3 APJs at the USPTO invalidated the patent for obviousness, overturning the examiners and Director.

Thousands of inventors like Gene, David, and Ray would be given new life should the Supreme Court rule that they have a right to a trial before a qualified impartial judge. A decision is expected in mid or late 2021.

Josh Malone, volunteer at US Inventor says, “The USPTO has been reconfigured to protect large corporations from the threat of inventors with better ideas – there is no justification for denying inventors the right to a hearing before a qualified and impartial judge”. Malone’s patent for Bunch O Balloons was invalidated when USPTO APJs held that he did not adequately describe how full the balloons must be when they release from their tubes.

US Inventor has filed an amicus brief in the Arthrex case arguing that Congress must correct their mistake in the 2011 America Invents Act to require that APJs be appointed by the President and confirmed by the Senate like all other judges. In the alternative, they suggest that the Supreme Court could declare decisions rendered by APJs to be advisory, leaving the final decision concerning Arthrex to be made by a properly confirmed judge.

Local or industry-specific inventors are available for interview or statements. Thousands of inventors have lost their patent rights by the hand of the unconstitutionally appointed patent invalidation judges. They reside and own businesses in every state with inventions in every field of technology.

For media inquiries and interview requests contact:

Ryan Julison
(321) 377-6877

About US Inventor – US Inventor, Inc. (“US Inventor”) is a non-profit association of inventors devoted to protecting the intellectual property of individuals and small companies. It represents its 13,000 inventor and small business members by promoting strong intellectual property rights and a predictable U.S. patent system through education, advocacy and reform. US Inventor was founded to support the innovation efforts of the “little guy” inventors, seeking to ensure that strong patent rights are available to support their efforts to develop their inventions, bring those inventions to a point where they can be commercialized, create jobs and industries, and promote continued innovation.