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Congressional ______
A Research Service
informrng the legis aive debate since 1914____________________
Supreme Court to Consider Whether Patent
Judges' Appointments Are Constitutional
March 15, 2021
In 2011, Congress enacted a major patent reform bill, the Leahy-Smith America Invents Act (AIA). The
AIA, among other things, created adversarial proceedings-inter partes review (IPR) and post-grant
review (PGR)-to review the validity of issued patents and cancel those that should not have issued. The
U.S. Patent and Trademark Office's (PTO's) Patent Trial and Appeal Board (PTAB), composed of
hundreds of administrative patent judges (APJs), oversees such proceedings. The Secretary of Commerce
(the Secretary), in consultation with the Director of the PTO (the Director), appoints APJs to the PTAB. A
panel of three APJs oversees each IPR or PGR and rules on the validity of the patent under review.
In United States v. Arthrex, Inc., the Supreme Court is poised to address whether APJs exercise enough
power with sufficient independence such that the U.S. Constitution's Appointments Clause requires that
they be appointed by the President with the advice and consent of the Senate. Depending on how the
Supreme Court rules, Arthrex could have considerable impact on proceedings before the PTO and other
administrative agencies. As the decision could disrupt a major statutory program, and may affect
administrative agency adjudications more broadly, Arthrex may be of considerable interest to Congress.
This Legal Sidebar explains the legal background of the Appointments Clause and PTAB proceedings,
and describes the case's facts and procedural history. The Sidebar then discusses the arguments before the
Supreme Court before highlighting select considerations for Congress.
Legal Background
Appointments Clause
Under Article II, Section 2, Clause 2 of the U.S. Constitution (the Appointments Clause), the President
shall nominate, and by and with the Advice and Consent of the Senate, shall appoint [specified officers],
and all other Officers of the United States. However, the Clause also states that the Congress may by
Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the
Courts of Law, or in the Heads of Departments. The Appointments Clause thus establishes that the
President, the courts, or department heads may appoint inferior officers, when Congress grants such
authority by statute, but only the President may appoint Officers of the United States (who the Supreme
Court refers to as principal officers) with the Senate's advice and consent. (An officer is someone who
Congressional Research Service
https://crsreports.congress.gov
LSB10580
CRS Legal Sidebar
Prepared for Members and
Committees of Congress](ViewImageLocal?handle=hein.crs/govecqj0001&div=1&collection=&method=preview&ext=.png&size=3)
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