The administrative patent “judges” (APJs) at the U.S. Patent and Trademark Office are given the privileges and authority of principal officers without being appointed by the President with the Senate’s advice and consent, as the Appointments Clause requires. US Inventor filed an amicus brief in support of Arthrex asking the Supreme Court to remedy this constitutional violation by making APJs either inferior officers or non-officers.

There are two questions presented in the brief:

“1. Whether, for purposes of the Appointments Clause, U.S. Const. Art. II, § 2, Cl. 2, administrative patent judges of the U.S. Patent and Trademark Office are principal officers who must be appointed by the President with the Senate’s advice and consent, or “inferior Officers” whose appointment Congress has permissibly vested in a department head.

“2. Whether, if administrative patent judges are principal officers, the court of appeals properly cured any Appointments Clause defect in the current statutory scheme prospectively by severing the application of 5 U.S.C. § 7513(a) to those judges.”

Summary of the Argument: “The court of appeals’ remedy for the Appointments Clause violation would not have been preferred by Congress, and overlooks a constitutionally sound and non-disruptive way to downgrade APJs to inferior or non-officer status.”

Read the Amicus Brief.

USPTO - Appointments Clause News Article

About US Inventor

US Inventor was founded to support the innovation efforts of the “little guy” inventors, seeking reliable patent rights for developing our inventions, bringing those inventions to a point where they can be commercialized, creating jobs and industries, and promoting continued innovation. In short, we are proponents of “securing for limited times to … inventors the exclusive right to their … discoveries” in order to “promote the progress of Science and Useful arts.” U.S. Const. art. I, § 8, cl. 8. Our broad experience with the patent system, new technologies, and creating companies, gives us a unique perspective.