Monday, January 17, 2022

Supreme Court says more than 200 patent judges were improperly appointed

Washington – Supreme Court Governance More than 200 administrative judges hearing patent disputes on Monday, some of which were worth more than billions of dollars, were appointed in violation of the Constitution.

The solution, the court’s fractured majority ruled, was to give the director of the U.S. Patent and Trademark Office the power to review judges’ decisions in cases brought under a 2011 law that made it easier to challenge questionable patents.

Supporters of the process, called inter partes review, which is Latin for “between the parties”, say it helps combat patent “trolls” or companies that do not use them to obtain patents. but demand royalties and sue for damages. Opponents say the process is skewed towards revoking valid patents.

Monday’s decision means challenges will largely proceed as before without any change in the way judges are appointed. The narrow fixation of the court, subjecting judges to additional supervision, was significantly reduced by the replacement of the current system.

The case, United States v. Arthrax, No. 19–1434, arose from a challenge filed by a medical technology company Smith & Nephew against a patent held by Arthrax, a competitor on a medical device. A panel of judges on the Patent Trial and Appeals Board, an administrative tribunal in the executive branch created by a 2011 law, ruled that Arthrax’s patents were invalid.

Arthrax appealed to a special court in Washington, the United States Court of Appeals for the Federal Circuit, that the patent judges’ decision should be overruled because they were not properly appointed.

Appeal Court agreed, ruling that judges performed important work without supervision and were therefore “principal officers” under the Constitution, meaning they had to be appointed by the President and confirmed by the Senate.

The appeals court’s solution to the constitutional problem was to eliminate a section of the law that protected patent judges from being fired without cause. This effectively removed him from the “key authorities,” the appeals court said.

Chief Justice John G. Roberts Jr., writing for the five judges on Monday, agreed that there was a constitutional problem with the fit between the appointment of judges and their duties. The “incredible executive power” exercised by the judges, he wrote, “is inconsistent with their status as inferior officers.”

“Only an officer properly appointed to a principal office can issue a final judgment binding the executive branch in the proceedings before us,” the chief justice wrote.

Justice Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Connie Barrett joined in on that portion of the Chief Justice’s opinion.

Chief Justice Roberts wrote the second part of his opinion to only four judges, concerning what the court should do about the constitutional problem it had identified. He said the judges’ decisions should be subject to the director’s review. Justice Gorsuch did not agree with that part of the ruling, saying it was up to Congress how to fix the constitutional flaw.

Justice Stephen G. Breyer, along with Justice Sonia Sotomayor and Justice Elena Kagan, disagreed with the first part of the Chief Justice’s opinion. “Today’s decision,” he wrote, “is both unprecedented and unnecessary, and risks pushing the judiciary forward into areas where we lack both the authority to act and the ability to act wisely.”

But those three judges still said they had accepted Chief Justice Roberts’ solution to the problem identified by the majority.

Justice Clarence Thomas issued a separate dissent, which included Justices Breyer, Sotomayor and Kagan. “The Court today has drawn a new line that divides inferior officers from superior officers,” he wrote. “The fact that this line favors administrative patent judges over ambassadors, Supreme Court justices and department heads suggests that something is not quite right.”

Nation World News Desk
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