On March 1, 2021, the Supreme Court will hear argument in United States v. Arthrex, Inc. The issue before the Supreme Court is the application of the Appointments Clause to judges of the Patent Trial and Appeals Board (PTAB), a tribunal established by Congress in 2012 within the USPTO. In the decision below, the Court of Appeals for the Federal Circuit held that the administrative patent judges of the PTAB, currently appointed by the Commerce Secretary, were principal officers who had to be appointed by the President and confirmed by the Senate. The Federal Circuit then determined that it could cure the Appointments Clause defect by prospectively severing the application of statutory removal protections to the judges.

The Supreme Court will hear argument on both the principal officer question and the issue of proper remedy. Arthrex is the sixth Supreme Court case on the PTAB, and the second constitutional challenge. Persistent controversies surrounding the tribunal raise important questions for patents and innovation policy. And as a matter of administrative and constitutional law, the Arthrex case brings into sharp focus not only the proper construction of the Appointments Clause but more broadly the proper role of administrative adjudication.

The Center for Innovation Policy at Duke Law’s distinguished commentators will include a Federal Circuit judge and renowned academics whose scholarship has focused on the key patent, administrative, and constitutional issues. You can register for the event here.

12:00 noon–12:45 p.m. | Panel I: IP and Innovation Policy
The Honorable Timothy Dyk
Prof. John Duffy
Prof. Melissa Wasserman
Moderator: Prof. Arti Rai

12:45 p.m.–1:30 p.m. | Panel II: Administrative and Constitutional Law
Prof. Michael Asimow
Prof. Jennifer Mascott
Prof. Nina Mendelson
Prof. Christopher Walker
Moderator: Prof. Stuart Benjamin

Co-sponsored by the Duke Law Program in Pubic Law. Contact: Balfour Smith (bsmith@law.duke.edu) or Kelli Raker (kelli.raker@law.duke.edu).