Plain-English summary
Court rules administrative patent judges lacked constitutionally protected tenure; remands for rehearing
In Arthrex v. Smith & Nephew (2021), the Supreme Court held that administrative patent judges (APJs) at the Patent Trial and Appeal Board had constitutionally problematic removal protections. The Court vacated the Federal Circuit’s judgment and remanded, directing that APJs be made removable by the Director of the Patent Office.
Why this matters
The decision affects who controls decisions in patent disputes decided by the Patent Trial and Appeal Board (PTAB). It reduces the job protections for APJs, increasing agency leadership’s control over PTAB adjudications, and may change how patent challenges are adjudicated going forward. The ruling also continues a line of cases about how much independence administrative judges can have while remaining consistent with the Constitution’s separation of powers.
Who may feel it
- Patent holders and challengers (companies, inventors)
- Lawyers and law firms handling patent litigation and PTAB proceedings
- U.S. Patent and Trademark Office (USPTO) leadership and administrative judges
- Businesses that rely on patent enforcement or inter partes review processes
Key questions
- Do tenure-like protections for administrative patent judges violate the Constitution’s separation of powers by limiting the Executive’s control?