Supreme Court Hears Case Weighing Constitutionality Of Administrative Patent Proceedings In Which L&W Filed Friend-Of-The Court Brief Urging Relief For Patent Owners

On March 1, 2021, the U.S. Supreme Court heard arguments in United States v. Arthrex (transcript at this link).  In these cases the Court must decide whether the Court of Appeals for the Federal Circuit correctly held that the members of the Patent Trial and Appeal Board of the U.S. Patent and Trademark Office, who are known as administrative patent judges (“APJs”) and decide administrative patent proceedings such as inter partes review (“IPR”), wielded unconstitutional levels of power without having been nominated by the President with the advice and consent of the Senate.  The Federal Circuit held that this unconstitutionality could be alleviated by “severing” the statutes to eliminate the APJs’ job protections so that they are subject to termination at will by the Director of the Patent Office. 

Bridget Smith and Kenneth Weatherwax of Lowenstein & Weatherwax LLP filed a friend-of-the-court, or amicus, brief in the case on behalf of 39 aggrieved inventors supporting the patent owner in the case.  This amicus brief (available at this link) argues that the decisions of the PTAB have sufficient effect on the rights of inventors and owners of patents that they should be subject to Senate confirmation under the Constitution, and that severing the APJs’ job protections is not an appropriate remedy for the lack of such appointment of APJs.  L&W’s amicus brief on the 39 aggrieved inventors’ behalf was the most widely quoted and prominently cited amicus brief of the dozens of such brief filed in the case, including by the patent owner’s reply brief (link), the National Law Journal (subscription link), Bloomberg (link), Law360 (link), JDSupra (link), IPWatchdog (link), and Mac Observer (link), among other publications.