The Supreme Court will hear oral argument on March 1, regarding the constitutionality of the
inter partes review (IPR) system. The Court s decision, which will likely issue this summer, could have far-reaching consequences for both current and future participants in patent cases.
In October 2019, in
Arthrex v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019), the U.S. Court of Appeals for the Federal Circuit concluded that the statutory scheme appointing Patent Trial and Appeal Board (PTAB) administrative patent judges (APJs) violates the appointments clause of the U.S. Constitution. APJs at the PTAB render decisions on the patentability of issued patents, particularly through the commonly used adversarial IPR process. The Federal Circuit held that the APJs are principal officers, reasoning that [t]he lack of any presidentially-appointed officer who can review, vacate, or correct decisions by the APJs combined with limited removal power lead us to conclude … that these