A Patent Victory for Democratic Accountability

Thomas A. BerryToday inUnited States v. Arthrex, the Supreme Court held that there is a serious constitutional flaw in the organization of the Patent and Trademark Office. Specifically, the case concerned the Patent Trial and Appeal Board (PTAB), which the Court described as an “executive adjudicatory body within the PTO.” Although the Court did not go as far as it could have, this case is still an important win for democratic accountability within the executive branch.This case was about the “Appointments Clause” of the U.S. Constitution, which requires that all “officers of the United States” must be confirmed by the Senate. The Appointments Clause provides one potential exception to this rule, however: an exception for “inferior officers.” The clause allows Congress to dec ide that a particular inferior officer can be appointed by the president, a department head, or a court unilaterally, without Senate consent. But the Supreme Court explained inEdmond v. United States (1997) that inferior officers are limited to “officers whose work is directed and supervised at some level by others who were appointed by” the president.A PTAB panel is tasked with reviewing a challenge to a patent when a party alleges that the patent should not have been issued in the first place and should be canceled. PTAB panels generally consist of three administrative patent judges (APJs), who are appointed by the secretary of commerce. If APJs ar...
Source: Cato-at-liberty - Category: American Health Authors: Source Type: blogs