28 Jun U.S. Supreme Court Orders Review of U.S. Patent Office Reexamination Proceedings by USPTO Director In Order to Comply with the U.S. Constitution
June 21, 2021. In the case U.S. v. Arthrex et al., No. 19-1434, the U.S. Supreme Court splintered over the question of whether USPTO administrative law judges, when issuing a patent validity decision that by statute could not be reviewed by the Director of the USPTO, thereby exercised judicial power in violation of the Constitution because these judges were not appointed with the “advice and consent” of the Senate. The majority opinion about this arcane subject found a violation: “[w]e hold that the unreviewable authority wielded by APJs during inter-partes review is incompatible with their appointment by the Secretary to an inferior office.” The Court ordered that the Director of the USPTO review the case, implying that going forward, the USPTO Director has to review the result of every other “inter-partes reexamination” of a patent in order to establish that the administrative law judges operate under their supervision. An open question is the impact on other recent inter-partes patentability findings made by the APJ’s. All of these may have to be reviewed by the Director or be subject to the same challenge.