CCIA Files Supreme Court Amicus On Arthrex Patent Issues

BY Heather Greenfield
December 2, 2020

Washington — The Computer & Communications Industry Association filed an amicus brief in an upcoming Supreme Court case involving the status of Patent Trial and Appeal Board judges. The Court granted certiorari on two questions—whether the judges of the PTAB are principal officers who must be appointed by the President with consent from the Senate, and whether, assuming they are, the Federal Circuit’s remedy of severing civil service protections properly cured the defect. 

The following can be attributed to CCIA patent counsel Josh Landau:

“Our brief argues that the Justices should overturn the lower court ruling that these patent judges are principal officers. We expect the Court will do so based upon the PTO Director’s significant direct and indirect control over the judges’ work, including being able to set the policies they use to make decisions and the Director’s ability to pick and choose cases to review using a panel that includes the Director and judges of the Director’s choice.

“This is an important case for the U.S. patent system and for administrative law judges.  If patent judges are principal officers and thus improperly appointed, then all of their work is thrown into question—work that includes not just inter partes reviews, but also review of patent application appeals and determining who was the first to invent contested subject matter. It’s also important for the government more generally because if patent judges are principal officers who needed to be Senate-confirmed, so are any number of other administrative judges across the federal government, and their decisions will be similarly undermined.”

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