Engine and the Electronic Frontier Foundation submitted an amicus brief to the U.S. Supreme Court this week in United States v. Arthrex Inc. asking the Court to reconsider a Federal Circuit decision last year that found that administrative patent judges (APJs) of the Patent Trial and Appeal Board (PTAB) were unconstitutionally appointed.
As we previously noted, an adverse decision in this case could weaken the PTAB or make it less effective, which would harm patent quality. Among other things, the PTAB is authorized to take a “second look” at weak or overbroad patents that previously issued, and invalidate claims that should not have issued in the first place. Overall, this helps reduce the costs and rates of abusive patent litigation, including against startups. The Federal Circuit had previously ruled that APJs can be removed from their position without cause, which would make them more susceptible to pressure from appointed political officials and decrease certainty in the patent review process.
In our brief, we explain how the Supreme Court’s decision could solve the problem—by correctly understanding the role PTAB plays, as we argue in our brief, hopefully the Court will see that the appointment of APJs complies with the Constitution. A decision to the contrary could undermine the important inter partes review (IPR) system. As we explain in our brief, “[d]ismissing current APJs or otherwise dismantling, undoing, or delaying IPRs would wreak havoc on the patent system by amplifying the propagation of wrongly granted patents in contravention of Congress’s intent and the public’s interest.”
We appreciated the opportunity to partner with Timothy Trost and Keon Zemoudeh, students at the Intellectual Property & Technology Law Clinic at the University of Southern California Gould School of Law, to prepare the brief. You can read our amicus brief here.
