The Trump Administration filed a Petition for Writ of Certiorari. The administration petitioned the Supreme Court as to “whether, under the Appointments Clause, U.S. Const. Art. II, § 2, Cl. 2, administrative patent judges of the United States Patent and Trademark Office (USPTO) are principal officers who must be appointed by the President with the advice and consent of the Senate, or ‘inferior Officers’ whose appointment Congress may vest in a department head.”
As the petition points out, the Board is an “administrative tribunal within the USPTO that conducts several kinds of patent-related administrative adjudications, including appeals from adverse decisions of patent examiners on patent ap-plications and in patent reexaminations; derivation pro-ceedings; and inter partes and post-grant reviews. 35 U.S.C. 6(a) and (b).” Nevertheless, final decisions are appealable to the Federal Circuit pursuant to 5 U.S.C. 141(c), 144, 319.
Currently, there are more than 200 administrative patent judges. The patent judges consist of “persons of competent legal knowledge and scientific ability who are appointed by the Secretary
The Trump Administration argues that the administrative patent judges should be appointed by the President. It seems as though the goal it to appoint what they deem more qualified patent attorneys and patent judges to fill the judge roles. We may soon learn whether the patent judges are properly sitting to hear inter partes reviews and other matters under appeal at the USPTO.
