Since 2011, federal law has permitted those seeking to challenge the validity of patents to initiate administrative proceedings before the Patent Trial and Appeal Board (PTAB), a branch of the Patent Office. The Supreme Court will hear oral arguments on March 1 in United States v. Arthrex, Inc., a case that challenges the constitutionality of the PTAB’s structure. The Court should uphold the challenge because the administrative patent judges (APJs) who sit on the PTAB are appointed to their positions in a manner that violates the U.S. Constitution’s Appointments Clause.
The PTAB has been highly controversial throughout its 10-year existence. Patent holders complain that it weakens the patent system by facilitating challenges to properly issued patents. Studies show that the PTAB strikes down one or more patent claims in 84% of patents subject to a final decision. It routinely invalidates patent claims even where an Article III judge and jury upheld the claims in prior federal court proceedings involving the same parties. Indeed, that was true of the medical device patent at issue in Arthrex.
But we are not writing to criticize decisions issued by the PTAB or to urge its abolition. Rather, our concern is the constitutionally deficient manner in which APJs are appointed. These administrative officials are granted power to exercise vast amounts of executive authority. Under the Constitution, officials exercising such power are deemed “principal officers” of the United States and may only be appointed via presidential nomination and confirmation by the Senate. Because APJs are nominated by the Secretary of Commerce alone, the Constitution prohibits them from exercising such power.
The United States urges the Supreme Court to find that APJs are mere “inferior” officers—a finding that would legitimate the current appointment process. But the Court has traditionally defined an “inferior” officer as one whose decisions are subject to review by a superior who himself or herself is a “principal officer” confirmed by the Senate. PTAB decisions issued by APJs are not reviewable by any principal officer within the Executive Branch. Rather, they are reviewable only in a federal court (and even then, only under a deferential standard of review). APJs thus fall squarely within the Court’s definition of a “principal officer.”
Nor can the problem be fixed (as the government suggests) by eliminating good-cause tenure protection currently afforded to APJs by federal statutes. Eliminating tenure would increase the Secretary of Commerce’s supervisory authority by allowing him to remove APJs whose patent-invalidity rulings he finds objectionable. But it would not change APJs’ status as principal officers because their prior rulings would still not be subject to review by another principal officer.
Why should we be so concerned about what seems like an academic dispute about an arcane procedural provision of the Constitution? Because the decisions issued by the PTAB are of tremendous importance. Congress has empowered the PTAB to invalidate patents for products that the inventor likely spent years developing and that the Patent Office carefully studied before issuing the patent. These patents are property rights, granted because Congress has determined that granting individuals rewards for their inventions provides an important incentive for the development of new, useful, and often life-saving products. Any power to destroy these property rights ought to be reserved for individuals whose qualifications have been verified through application of Article II’s rigorous Senate confirmation process. All federal judges must go through that process. It is not too much to ask that any administrative official given similar patent-invalidation powers be required to go through the same process.