United States v. Arthrex, Inc.

December 30, 2020 • Legal Briefs

The American system of government is predicated in large part on just two concepts: separation of powers and due process of law. The separation of powers requires that the execution of laws be done by the executive branch and more specifically by people who are politically responsible. For this reason, the Constitution requires that important executive decisions be made only by individuals who are nominated by the president and confirmed by the Senate, so the public knows whom to blame for the poor performance. The due process of law requires that justice be administered by neutral adjudicators whose job and salary don’t depend on political considerations—which is why most federal judges (and all Article III judges) enjoy life tenure.

Yet even individuals who are not judges but who exercise some judicial functions enjoy a certain level of job security. In 2014 Congress passed the America Invents Act and created the Patent Trial and Appeal Board (PTAB), an administrative‐​law body housed within the Patent and Trademark Office (PTO) and vested with the extraordinary power to cancel patents.

Congress required the PTAB to be staffed by administrative patent judges (APJs) who are appointed to their position by the secretary of commerce and once appointed cannot be removed except “for cause.” Despite not having gone through the rigor of presidential vetting and Senate confirmation, APJs have the power to speak for the entire executive branch when they adjudicate patent disputes. What’s more, in so doing, they are invested with the power to essentially overrule the PTO director—who did go through the nomination and confirmation process.

Thus we have a situation where important decisions are made not by politically responsible persons but by bureaucrats not subject to anyone’s direct control. The U.S. Court of Appeals for the Federal Circuit, which has exclusive jurisdiction over patent law, correctly recognized that the arrangement where APJs can speak on behalf the entire executive branch without going through Senate confirmation is constitutionally problematic. To “fix” the problem, the Federal Circuit excised the “for cause” protection currently enjoyed by the APJs, thus converting them into “inferior officers” who can be terminated at will by the PTO director ot secretary of commerce.

Instead of solving the constitutional problem, however, the Federal Circuit only compounded it. By making APJs terminable at will, the court is allowing APJs to make executive determinations without review by any “principal officer,” as the Constitution requires. Making matters worse, the Federal Circuit’s solution allows for political actors to exert—through the threat of termination—pressure on individuals who are charged with adjudicating patentees’ private property rights.

This dynamic raises the specter of adjudication being dependent on political connections rather than on the neutral application of law to facts. A PTAB staffed by APJs who are terminable at will is fundamentally incompatible with constitutional due process requirements.

The Supreme Court took up the case to review this arrangement, which Cato argues cannot stand. Our amicus brief seeks to uphold both the proper separation of powers in staffing the Patent Office and the due process rights of patent‐​holders.

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About the Authors
Ilya Shapiro

Director, Robert A. Levy Center for Constitutional Studies, Cato Institute