Arthrex filed its reply brief on February 19
th, submitting what will be the final word in the case until oral arguments are presented next week. In its reply, Arthrex seeks to shore up its own arguments while rebutting the arguments made by Smith & Nephew and the United States in their individual replies.
The consolidated
Arthrex cases (docketed as 19-1434), ask the Court to determine whether administrative patent judges (APJs) are principal or inferior officers and, if they are principal officers, what remedy should be employed to bring their appointments into compliance with the Appointments Clause of the Constitution. Currently, APJs are appointed by the Secretary of Commerce, and are assigned to panels as designated by, and otherwise supervised by, the Director of the USPTO. The United States and Smith & Nephew have argued that APJs are inferior officers because they are supervised “at some level.” Because APJs are supervised by the Director, they argued, APJs have always been inferior officers and so no remedy is needed. On the other hand, Arthrex has argued that the decisions of inferior offices must be reviewable by a superior. Under this view, the lack of reviewability of APJ decisions means that they are principal officers and their appointment by the Secretary is unconstitutional. Although Arthrex prevailed on the constitutional issue, it is dissatisfied with the Federal Circuit’s remedy, which involved severing tenure protections from APJs and remanding the case for a new hearing. Arthrex urges the Court to leave the remedy to Congress.