US Supreme Court considers appointment of patent judges
MarkThomas / Pixabay
US Supreme Court considers appointment of patent judges

The US Supreme Court on Monday heard oral arguments Monday in United States v. Arthrex, Inc., a case that intersects patent law, administrative law and the separation of powers. The question before the court is whether administrative patent judges of the US Patent and Trademark Office should be considered “principal officers” who must receive both presidential appointment as well as Senate confirmation, or “inferior officers” appointed by the department head.

The justices seemed skeptical of the argument that the administrative patent judges were not principal officers. Justice Sonia Sotomayor expressed concern that if administrative law judges were considered inferior officers, they would be subjected to total presidential control. She asked if this was “totally at odds with an adjudicatory system of any kind.”

Justice Samuel Alito posed a hypothetical where “Congress enacted a statute providing that a deputy solicitor general shall have the final and unreviewable authority to decide whether the United States will take an appeal in any case involving the interpretation or application of one particular provision of one particular regulatory statute.” He inquired if that too could survive constitutional review if the deputy solicitor general was not approved by the Senate.

Justice Neil Gorsuch was concerned that the government’s position would enable a president to easily reverse decisions by an administrative patent judge, and Justice Brett Kavanaugh considered that the complexity and importance of the adjudication of patent cases suggested that administrative patent judges are in fact “principal officers.”

It is unclear when the court will release its decision. The court typically releases all of its decisions for the term by the end of June.