Published On: Tue, Jun 22nd, 2021
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Supreme Court Rules Patent Judges’ Appointment Unconstitutional

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More than 200 Patent Trial and Appeal Board (PTAB) judges were unconstitutionally appointed, but the problem may be cured by having by having the board’s director exercise greater supervision of them, the Supreme Court ruled in a splintered decision. The decision in the case of U.S. v. Arthrex Inc., court file 19-1434, which was consolidated with two other cases involving Arthrex, came June 21. Chief Justice John Roberts wrote the opinion of the court. In the decision, Roberts wrote that the patent adjudication system is administered by the Patent and Trademark Office (PTO), an executive agency within the Department of Commerce. The PTO is run by a single director appointed by the president, subject to Senate confirmation. The lawsuit concerns the board, which was established by the Leahy-Smith America Invents Act of 2011. The board sits in panels of at least three members drawn from the Director, the Deputy Director, …

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