Amster Rothstein and Ebenstein, LLP - Intellectual Property Law

Charles Macedo and David Goldberg Co-Author Article For Oxford University Press's Journal Of Intellectual Property Law & Practice on the US Supreme Courts finding authority held by administrative patent judges to be unconstitutional

December 17, 2021
Author(s): Charles R. Macedo, David P. Goldberg, Chandler Sturm

Charles Macedo and David Goldberg co-authored an article for Oxford University Press’s Journal of Intellectual Property Law & Practice on the US Supreme Courts finding authority held by administrative patent judges to be unconstitutional.

United States v Arthrex, Inc.
, Nos. 19-1434, 19-1452, 19-1458, 594 US ____, slip opinion, United States Supreme Court, 21 June 2021 (Arthrex III)

Arthrex, Inc. v Smith & Nephew, Inc., 941 F3d 1320 (Federal Circuit 2019) (‘Arthrex I’), rehearing and rehearing en banc denied, 953 F3d 760 (Federal Circuit 2020) (‘Arthrex II’), petition for certiorari filed

On 21 June 2021, the United States Supreme Court issued a decision in United States v. Arthrex, Inc. finding that the authority of administrative patent judges (APJs) of the Patent Trial and Appeal Board to issue Final Written Decisions without review by a superior is inconsistent with their appointment as inferior officers under the Appointments Clause of the US Constitution. The Supreme Court sought to cure this constitutional violation by giving the Director of the United States Patent and Trademark Office more control over the rulings of APJs.

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