officers can be appointed by a department
head. Currently, the judges are appointed
by the Secretary of Commerce. The Biden
administration is arguing that the judges are
properly appointed inferior officers.
Though it seemed that a majority of the justices
were likely to disagree, it wasn’t clear what
they would do as a result. If the court finds the
judges’ appointment problematic, Congress
could correct the problem with legislation, but
Justice Neil Gorsuch suggested “that could take
a long time.”
The justices also discussed a lower court’s
solution, making the administrative patent
judges inferior officers by invalidating a portion
of the federal Patent Act which restricts their
firing. Justice Amy Coney Barrett described that
as the “cleanest” solution.
The specific case the justices heard this week
involves medical device company Arthrex.
The Naples, Florida-based company patented
a surgical device for reattaching soft tissue to
bone. Arthrex sued a British company, Smith
& Nephew, for patent infringement in 2015.
The companies ultimately settled, but Smith &
Nephew challenged Arthrex’s patent.
During that challenge before the Patent
Trial and Appeal Board, a panel of three
administrative patent judges sided with
Smith & Nephew and found Arthrex’s claims
unpatentable. Arthrex appealed, arguing the
judges were unconstitutionally appointed, and
a federal appeals court agreed.
A decision by the Supreme Court in the case is
expected by the end of June.