US Supreme Court to hear case arising from a medical device patent challenge
The United States (U.S.) Supreme Court has agreed to decide whether more than 100 technology disputes must be reheard because judges were unconstitutionally appointed to a U.S. Patent and Trademark Office tribunal in a case arising from a medical device patent challenge.
According to the Supreme Court Justices, they would review a 2019 lower court decision that found a "constitutional defect" in the appointment of Patent Trial and Appeal Board judges. The decision pertains to an appeal by a Florida-based medical device company Arthrex in relation to a patent tribunal three-judge panel's decision that invalidated part of one of its patents that had been challenged by British-based rival Smith & Nephew PLC.
The U.S. Patent and Trademark Office Tribunal was created in 2011 and is an administrative court which is run by U.S. Patent and Trademark Office. History has it that it takes a second look at patents issued by the agency and often cancels them.
The tribunal has more than 200 judges who are government employees appointed by the U.S. Commerce Secretary rather than nominated by the President and confirmed by the Senate.
According to the U.S. Court of Appeals for the Federal Circuit, which specializes in patent litigation, these tribunal judges have considerable power and autonomy, which makes them kind of "principal officers" and such officers ought to be appointed by the President and confirmed by the Senate under the U.S. Constitution.
This constitutional problem was solved when the Federal Circuit struck down part of a law dealing with how these tribunal judges can be removed from power.
The court's remedy allowed the board to continue operating. Still, the Federal Circuit has said that more than 100 technology disputes may need to be reheard before new panels of tribunal judges.