Rai testifies on Hill regarding appointment of administrative patent judges Nov. 19
Rai will testify before House Judiciary’s Subcommittee on Courts, Intellectual Property, and the Internet in a hearing titled “The Patent Trial and Appeal Board and the Appointments Clause: Implications of Recent Court Decisions.”
Professor Arti Rai will testify before the U.S. House Committee on the Judiciary’s Subcommittee on Courts, Intellectual Property, and the Internet on Nov. 19 in a hearing titled “The Patent Trial and Appeal Board and the Appointments Clause: Implications of Recent Court Decisions.”
The hearing will begin on Tuesday at 2 p.m. in 2141 Rayburn House Office Building. Rai’s testimony will be available here following the start of the hearing.
The hearing will consider implications of an Oct. 31 ruling of the U.S. Court of Appeals for the Federal Circuit in Arthrex, Inc., v. Smith & Nephew, Inc., Arthrocare Corp., in which the court held the appointment of the administrative patent judges (APJs) to the Patent Trial and Appeal Board (PTAB) of the U.S. Patent and Trademark Office (USPTO) by the U.S. Secretary of Commerce to be in violation of the Constitution’s Appointments Clause. The court severed the portion of the Patent Act that restricts removal of APJs from office, thereby making them “inferior officers” that can be appointed by “heads of departments” like cabinet secretaries, as opposed to “principal officers” that must be nominated by the president and confirmed by the U.S. Senate.
Rai, the Elvin R. Latty Professor of Law and faculty director of the Center for Innovation Policy and an internationally recognized expert in intellectual property law, innovation policy, administrative law, and health law, commented on the ruling to Law 360, saying the case raises broader issues concerning administrative adjudication and judges. In a Nov. 4 post on the blog PatentlyO, she wrote that the “cleanest” path forward would be “surgical Congressional intervention” that gives the USPTO director “an explicit, unilateral right of review” over PTAB decisions. This approach, she wrote, “would cure any perceived constitutional infirmity without subjecting APJs to at-will firing.”
In 2009-2010, Rai served as the administrator of the Office of External Affairs at the USPTO, leading policy analysis of the patent reform legislation that ultimately became the America Invents Act and working to establish the USPTO’s Office of the Chief Economist. She earlier served on President-elect Obama’s transition team reviewing the USPTO.