The Federal Circuit Determines That the PTAB’s Scheme for Appointing Judges Is Unconstitutional

In Arthrex, Inc. v. Smith & Nephew, Inc., the Federal Circuit ruled that the manner by which Administrative Patent Judges (APJs) are appointed is unconstitutional.

Arthrex appealed from a final written decision issued in an inter partes review (IPR) proceeding holding several of its patent claims to be invalid. On appeal, Arthrex contended that the final written decision was improper because the scheme for appointing the APJs rendering such decision violated the Appointments Clause of the Constitution. The issue was whether APJs are “principal officers” which must be appointed by the President, or “inferior officers” who need not be appointed by the President and whose appointment properly could be made by the Secretary of Commerce.

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