The justices laid down their own remedies for violating the constitutional appointment clause

Opinion analysis

On Monday, the judges Rule 5-4 The “non-examineable power” of administrative patent judges means that these APJ appointments violate the constitutional appointment provisions. The judge then ruled with a score of 7-2 that the remedy was a measure made by the court itself-the Director of the US Patent and Trademark Office now has the right to review APJ’s decision.Both rulings occurred in United States v. Arthrex, Inc.

Ten years ago, Congress enacted a patent reform bill, the Leahy-Smith American Inventions Act. In the AIA, Congress created a new ruling system to challenge the validity of granted patents. AIA has also established an APJ committee-the Patent Trial and Appeal Board-with the authority to make the final decision on the validity of the challenged patent. However, unlike the executive branch heads and other senior officials appointed by the President and confirmed by the Senate, APJ is appointed by the Secretary of Commerce.

Arthrex is a company that manufactures medical equipment. It has a patent that was challenged by rival Smith & Nephew and invalidated by PTAB. On appeal, the U.S. Court of Appeals for the Federal Circuit ruled that APJ’s appointment violated the terms of appointment. As we explained more fully in the case previewThe government intervened to defend the constitutionality of the law. No party was satisfied with the appeal decision, and all parties asked the Supreme Court to hear the case; the court approved all three petitions and merged them.

Chief Justice John Roberts issued the opinion of the court. In the first part of his majority opinion, the court elaborated on the procedural background, in the second part is the analysis of violations of the constitution, and in the third part is the remedial measures.

Regarding violations of the Constitution, Roberts (joined by Justice Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) pointed out that the starting point of the analysis of all parties is Edmund v. United States, It believes that “lower officials must’to a certain extent, other persons nominated and appointed by the president accept guidance and supervision under the advice and consent of the Senate.’” The court held that Edmond The reason for assisting here is that APJ has the ability to make the final decision on behalf of the United States without any review by any principal officials of the executive branch, and the fact that only the PTAB has the authority to approve the review makes the issue more complicated.The court held that these “restrictions on review alleviated [USPTO] The person in charge of the final decision made by the APJ allegedly in charge of him. The court regarded the ability of directors to cancel or confirm patent claims as a ministerial duty stipulated in the APJ’s final decision, with a “chain of operating instructions.”[ning] Not from the director to his subordinates, but from APJ to the director. Quoting its decision Free Enterprise Fund v. Listed CompanyAccording to the court, since “PTAB’s decision is not subject to any administrative review, the president can neither supervise PTAB himself nor’attribute the board’s failure to someone he can supervise.’”

The court concluded that “the uncensorable administrative power exercised by APJ is incompatible with its status as a lower-level official.”

Roberts then turned to formulating remedial measures. Only Alito, Cavano and Barrett formally joined this part of his opinion, but in a separate opinion, Justice Stephen Breyer (Judges Sonia Sotomayor and Elena Kagan Joining) expressed agreement with Roberts’ reasoning on remedial measures, thus providing seven votes for remedial holdings. Roberts first pointed out the court’s general divisibility approach: “[W]When faced with constitutional flaws in laws and regulations, we tried to limit the solution to the problem by ignoring the problematic part and leaving the rest intact. “Therefore, he refused to approve Arthrex’s request to lift the entire “party review” system created by AIA to be unconstitutional and reject the request for the following procedures. Instead, he chose a “tailored approach” in which the directors “can review the final PTAB Make decisions and issue decisions on behalf of the board of directors after review. Roberts chose this remedy, although 35 USC § 6(c) Pointed out “[o]Only the Patent Trial and Appeal Board can approve the review. “

Roberts wrote that the director’s review will follow “an almost universal ruling model in the executive branch” and align the PTAB with the Trademark Trial and Appeal Board. Even if the government arbitrarily lifts APJ’s solution will solve the constitutional issue, he wrote, “The director’s review better reflects the PTO’s internal oversight structure and the nature of APJ’s responsibilities.” He concluded:

35 USC § 6(c) does not apply to the director because it prevents the director from reviewing PTAB’s decision on his own. Directors can participate in such reviews and make their own decisions. When reviewing such a decision of the director, the court must “disregard the law and comply with the constitution” to make a ruling on the case and violate Article 2 to restrict its review authority.

Regarding the specific dispute over the Arthrex patent, Roberts believes that the appropriate remedy is to send the case back to the acting director to decide whether to retry the case. “In this case, the limited remand gave the director a sufficient opportunity to be reviewed by the principal officials,” he wrote. “Because the root cause of the violation of the Constitution is the restriction of the director’s review power, not the minister’s appointment of APJ, Arthrex has no right to hold a hearing in front of the new APJ panel.”

Gorsuch partly agrees (adding the first and second parts of the majority opinion) and partly against it (rejecting Roberts’s severability analysis in part three). What Gorsuch is most worried about is that officials can withdraw their acquired property rights while not being responsible to anyone in the executive branch. He agreed that Article 2 only grants the president “executive power”. The constitution provides for a power chain in which the person in charge supervises lower-level officials, and the PTAB system “breaks this chain of dependence.” However, Gorsuch found that Roberts lacked remedial measures. He explained that his method would not be to cut, but would involve a more “traditional path”: “Identify the violation of the Constitution, explain our reasoning, and’set aside’ PTAB’s decision in this case.” Gorsuch It is believed that “the severability analysis of the majority violates rather than implements the legislative intent”, in which “the court granted a director a new power he had never enjoyed before. This is the power that Congress has explicitly refused to grant him and grant others— -Elimination of obtaining patents through intellectual property procedures. In effect, the courts subtract statutory powers from one group of administrative officials and add them to another group.”

Breyer (joined by Sotomayor and Kagan) also partly agrees and partly disagrees (agrees with the first and second part of the dissent of Justice Clarence Thomas). Breyer disagrees with the premise of the analysis of the majority’s terms of appointment based on two arguments. First, “the court should interpret the appointment clause as granting Congress a certain degree of leeway to establish and authorize a federal office”, which he believes is sufficient to verify the statute here. “All in all,” Breyer wrote, “within the scope of policy decisions, the director maintains control over decision-making. The director cannot review and decide individual cases on his own; but Congress has good reasons to seek independent board decisions under these circumstances— These circumstances will apply, rather than formulating director-controlled policies.” Second, Breyer continued, the court “should conduct a functional review of relevant positions and responsibilities, rather than adopt a formalist approach based on judicial rules.” He believed that Congress It is intended to give APJ a certain degree of independence, and “there is no reason to believe that the plan will prevent the director from exercising policy control over APJ or break the accountability chain that holds the president accountable.” Bad nomination. Despite this, Breyer agreed that “any remedy should be directed at violations of the Constitution” (ie, APJ’s decision cannot be reviewed by the directors alone), and because he found that “the court’s remedy resolved that specific issue,” he agreed Its remedial holdings.

Thomas disagreed. The premise of his objection is that he believes that the terms of appointment do not require the Senate to confirm APJs of at least two officials below the president (ie the director and the secretary of commerce). Thomas inferred that APJ is already a low-level official, and they will keep the patent plan intact, rather than rewriting the statutory powers of the directors. In Thomas’ view, the director and secretary are also “functional superiors” because they supervise and direct the work performed by APJ.He also believes that the director’s control is greater than the Edmond Because the director: (1) can designate which APJs will hear certain cases and can remove them without reason; (2) have sufficient power to control APJs to avoid wrong decisions or let them be dismissed by the secretary; (3) decide whether to make a decision in the first instance , The decision is final and cannot be appealed; (4) Choose which APJ will hear the challenge or can appoint himself, his deputy director and patent commissioner; (5) Decide which PTAB decision will serve as a precedent to bind other expert groups; (6) ) You can add other members (including himself) to the APJ expert group for retrial.

In general, Thomas inferred that the extensive supervision of the directors ensures that APJ “has no authority to make final decisions on behalf of the United States unless other executives allow it.” Thomas also commented on the court’s failure to determine whether APJ was a lower-level official or a principal official and whether the appointment procedure was consistent. The constitution takes a clear stand to raise objections. In Thomas’ view, if the appointment of APJ is not the “source” of the violation of the Constitution (as the court found), then this should resolve the lawsuit. On the contrary, Thomas sees the majority opinion as a regulatory “decentralization of executive power among officials,” and he found flaws in this analysis. Thomas concluded that no matter how the court’s opinion is interpreted (APJ is the main proposal for the court’s conversion to a lower level, or APJ is a lower level official who lacks supervision), the remedy is not supported.In his opinion, the application Edmond The test will conclude that APJ is “inferior to the Secretary and Secretary in form and function” and therefore does not need to change the current statutory plan.

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