In United States v. Arthrex, Inc. (No. 19-1434), the U.S. Supreme Court ruled that the statutory structure of inter partes review (“IPR”) violates the United States Constitution by permitting administrative patent judges to issue final decisions ordering cancellation of issued patent rights on behalf of the Executive Branch.  Justice Neil Gorsuch, in his opinion concurring in part and dissenting in part, cites the friend-of-the-court brief authored and filed in the case by Bridget Smith and Kenneth Weatherwax of Lowenstein & Weatherwax LLP.  L&W’s brief, which as Justice Gorsuch notes was filed on behalf of “39 Aggrieved Inventors” who have suffered adverse decisions by the unreviewable administrative patent judges, supports the finding of unconstitutionality that the Court ultimately reached and argues for a remedy that would relieve owners and inventors of patents of the consequences of these decisions.  Justice Gorsuch cited L&W’s brief as “highlight[ing] example after example” of how IPR’s separation-of-powers and due-process “problems have started coming home to roost,” and urged “the interested reader to explore” these examples further.

To view the Supreme Court’s decision, please click this link.  To view L&W’s amicus brief, please click this link.