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I'm not surprised that #SCOTUS decided to hear the Appointments Clause challenge to administrative patent judges at the USPTO, but I hope Congress will fix the issue before #SCOTUS has to weigh in. Quick thread: https://twitter.com/SCOTUSblog/status/1316010080966508544
In our @CalifLRev article New World of Agency Adjudication, @MelissaWasserma & I flagged this as a potential constitutional issue -- i.e., that the agency head does not have final decisionmaking authority over decisions from Patent Trial and Appeal Board: https://ssrn.com/abstract=3129560
As we explored in that article, the PTAB is an outlier in that sense, so this constitutional challenge is narrow and only affects administrative adjudication systems where the agency head lacks final decisionmaking authority -- a very, very small subset of adjudicative systems.
I think #SCOTUS will agree with the Federal Circuit's formalist approach to the Appointments Clause issue, but I have no confidence they will agree that the remedy (to make the administrative patent judges removable at will) cures the constitutional defect.
As a policy matter, that remedy is awful. It increases constitutional tensions in agency adjudication b/w decisional independence of administrative judges and political control of agency adjudication -- something I've explored in this @IowaLawReview essay: https://ssrn.com/abstract=3289634
I hope #SCOTUS doesn't have to figure out the remedy. Congress should act. The legislative fix is simple: amend the Patent Act to give the agency head final decisionmaking authority and reinstate the modest tenure protections: https://www.yalejreg.com/nc/congress-can-and-should-fix-the-constitutional-status-of-administrative-patent-judges/
In August, @ABAesq House of Delegates adopted Resolution 108A, which was co-sponsored by @ABAesq. Resolution 108A urges Congress to make this legislative fix: https://www.americanbar.org/content/dam/aba/directories/policy/annual-2020/108a-annual-2020.pdf
FWIW, I've added a bit more detail in this quick-take @YaleJREG post: https://www.yalejreg.com/nc/the-supreme-court-decides-to-hear-arthrex-case-to-consider-appointments-clause-challenge-to-administrative-patent-judges/
