Appellants Raise Due Process Issues in New Vision Gaming and Development v SG Gaming | McDonnell Boehnen Hulbert & Berghoff LLP jdsupra.com - get the latest breaking news, showbiz & celebrity photos, sport news & rumours, viral videos and top stories from jdsupra.com Daily Mail and Mail on Sunday newspapers.
On 1 March 2021 the Supreme Court heard oral arguments in
United States v Arthrex (19–1434). This case addresses whether administrative patent judges (APJs) – who preside over
inter partes reviews at the United States Patent and Trademark Office (USPTO) – are unconstitutionally appointed principal officers and, if so, whether that constitutional violation can be cured by severing for cause employment protections for APJs.
If the Supreme Court in
Arthrex concludes that APJs are unconstitutionally appointed principal officers, the remedy that the court adopts or recommends could reshape practice and procedure for
inter partes reviews and other USPTO proceedings.
Facts
Arthrex came to the Supreme Court from a 31 October 2019 Federal Circuit decision –
Big Time Vapes, the challengers
petitioned the Supreme Court for a writ of certiorari on December 18, 2020. The case involves the claim that the statute purportedly authorizing the Deeming Rule is an unconstitutional delegation of Congress’ legislative power.
The challenged statute provides that the Family Smoking Prevention and Tobacco Control Act “shall apply to all cigarettes, cigarette tobacco, roll-your-own tobacco, and smokeless tobacco and to
any other tobacco products that the [FDA] by regulation deems to be subject to this [Act].”
Article I, § I of the Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
Vape Companies Asks Supreme Court to Throw Out FDA’s Deeming Regulations
Eight vaping companies have asked the U.S. Supreme Court to consider whether the U.S. Food & Drug Administration (FDA) acted improperly when enacting its deeming regulations that introduced federal regulations for vaping products, cigars and other tobacco products.
Attorneys for the plaintiffs in
Moose Jooce, et al. v. Food & Drug Administration, et al. filed a petition for writ of certiorari, a request to have the U.S. Supreme Court consider the case. The plaintiffs claim that FDA acted improperly because the person that issued the deeming regulations was not qualified to do so per the Appointments Clause. In this case, the rule was issued by Leslie Kux, the associate commissioner for policy, and not the commissioner himself.
As discussed here, the Justices asked many questions in the oral argument in
Arthrex this week on both questions: (1) whether there was an Appointments Clause defect and (2) if so, whether the Federal Circuit properly cured it. With respect to the first question, several of the Justices appeared skeptical that administrative patent judges are inferior officers as argued by the government and Smith & Nephew. Instead, the Court may well affirm the Federal Circuit s holding that the appointment of administrative patent judges to the Patent Trial and Appeal Board violated the Appointments Clause.
What was much less clear from the argument, however, was the Justice s views on the second question. While the Federal Circuit s cure (prospectively severing a portion of the AIA restricting the way APJs can be removed) did not get much attention during the argument, no other approach appeared to have a consensus either.