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Client Alert: Supreme Court Requires More Oversight Over PTAB in Arthrex Decision

June 22, 2021

Supreme Court Requires More Oversight Over PTAB In Arthrex Decision, a Cantor Colburn Client Alert written by Post-Grant Practice Chair Andrew Ryan.

This client alert relates to the Supreme Court’s decision yesterday in United States v. Arthrex, which is directed to the constitutionality of inter partes review (IPR) in its current form.  This case has drawn a lot of attention over the last couple years as it has made its way through the Fed. Cir. and the PTAB.  In sum, Arthrex argued that the administrative patent judges  (APJs) who sit on PTAB are constitutionally unqualified to issue final decisions on the patentability of issued patents because they are not “principle officers” nominated by the President and approved by the Senate (rather, they are “inferior officers” appointed by the Secretary of Commerce).  The Supreme Court agreed with Arthrex but found that the constitutional defect can be fixed by clarifying that the USPTO Director (who is a principal officer) has ultimate oversight over PTAB decisions.  The USPTO is expected to issue guidance and procedures regarding this new layer of oversight by the Director relatively soon but, generally, IPR procedures are expected to remain intact largely as is. 

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