Justices Told PTAB Appointments Are Not Unconstitutional

Law360 (June 29, 2020, 9:57 PM EDT) -- The federal government and Smith & Nephew Inc. have both asked the U.S. Supreme Court to overturn a Federal Circuit ruling that Patent Trial and Appeal Board judges were unconstitutionally appointed, saying legal precedent is clear that the decision cannot stand.

The appeals court was wrong to conclude in its October ruling in Arthrex Inc. v. Smith & Nephew Inc. that PTAB judges don't have enough direction and supervision to pass constitutional muster, the government and the medical device maker said in cert petitions filed Thursday and Monday, respectively.

The director of the U.S. Patent and Trademark Office and the secretary...

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