Events

The Supreme Court will hear argument in United States v. Arthrex, Inc. on March 1, 2021. The issue before the Court is the application of the Appointments Clause to judges of the Patent Trial and Appeals Board, a tribunal established by Congress in 2012 within the U.S. Patent and Trademark Office. The decision below by the Court of Appeals for the Federal Circuit held that administrative patent judges were principal officers under the Constitution. The Arthrex case focuses on the proper construction of the Appointments Clause and, more broadly, the proper role of administrative adjudication. Distinguished commentators on this program include a Federal Circuit judge and renowned academics whose scholarship has focused on the key patent, administrative, and constitutional issues. Please register here: http://bit.ly/3sk2dsq. Sponsored by The Center for Innovation Policy at Duke Law and the Duke Law Program in Public Law. Contact: Balfour Smith (bsmith@law.duke.edu) or Kelli Raker (kelli.raker@law.duke.edu). More at http://bit.ly/2XFtYxB.

On March 1, 2021, the Supreme Court heard argument in United States v. Arthrex, Inc. The issue before the Supreme Court is the application of the Appointments Clause to judges of the Patent Trial and Appeals Board (PTAB), a tribunal established by Congress in 2012 within the U.S. Patent and Trademark Office. In the decision, the Court of Appeals for the Federal Circuit held that the administrative patent judges of the PTAB, currently appointed by the Commerce Secretary, were principal officers who had to be appointed by the President and confirmed by the Senate. The Federal Circuit then determined that it could cure the Appointments Clause defect by prospectively severing the application of statutory removal protections to the judges. The Supreme Court will hear argument on both the principal officer question and the issue of proper remedy. Arthrex is the sixth Supreme Court case on the PTAB, and the second constitutional challenge. Persistent controversies surrounding the tribunal raise important questions for patents and innovation policy. And as a matter of administrative and constitutional law, the Arthrex case brings into sharp focus not only the proper construction of the Appointments Clause but more broadly the proper role of administrative adjudication.

To examine the issues involved, The Center for Innovation Policy at Duke Law and the Duke Law Program in Public Law co-sponsored two panel discussions on February 12, from 12 noon to 1:30 p.m. The distinguished commentators on these panels included a Federal Circuit judge and renowned academics whose scholarship has focused on the key patent, administrative, and constitutional issues.

PANEL I: IP and Innovation Policy

• The Honorable Timothy Dyk
• Prof. John Duffy
• Prof. Melissa Wasserman
• Prof. Arti K. Rai, Moderator

PANEL II: Administrative and Constitutional Law

• Prof. Michael Asimow
• Prof. Jennifer Mascott
• Prof. Nina Mendelson
• Prof. Christopher Walker
• Prof. Stuart Benjamin, Moderator