LitigationPatent

One Way or Another, Arthrex Promises to Put the PTAB on Trial

For weeks now I have been asking the United States Patent and Trademark Office (USPTO) to confirm how many Administrative Patent Judges (APJs) are currently employed by the Office, a request that predates the Federal Circuit’s controversial Arthrex decision, but which was renewed after the decision issued. For reasons that I cannot explain, the Office refuses to provide an answer to what seems to be a straightforward and legitimate question: How many APJs are currently employed by the USPTO? Regardless of the USPTO’s reluctance to identify the number of APJs employed, it seems safe to say that the employment rights and futures of several hundred APJs hang in the balance as the result of the Federal Circuit’s decision in Arthrex, which found that the hiring of APJs violated the Appointments Clause of the U.S. Constitution. The Federal Circuit did, however, attempt to provide a gift to the Office by rewriting the section of the America Invents Act (AIA) they found to create the problem, and by so doing turned APJs into inferior officers. In order to do so, the Federal Circuit turned those uncertain number of APJs into employees-at-will, which allows for them to be fired by the Director of the USPTO. This is significant because certain APJs have not been willing to get on board with changes implemented by Director Iancu. The belief of those APJs who have not been “team players” is that they are judges and are not controlled by and do not answer to Director Iancu.

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