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Constitutional Law Keyed to Shanor
United States v. Arthrex, Inc.
Citation:
141 S. Ct. 1970 (2021)Facts
Arthrex, Inc. develops medical devices for orthopedic surgery and secured a patent on a surgical device for reattaching soft tissue to bone without tying a knot. Smith & Nephew claimed that Arthrex’s patent was invalid, and the dispute proceeded to inter partes review before the Patent Trial and Appeal Board. Three Administrative Patent Judges, appointed by the Secretary of Commerce, formed the PTAB panel that concluded Arthrex’s patent was invalid. On appeal to the Federal Circuit, Arthrex argued that APJs were principal officers who must be appointed by the President with Senate advice and consent, making their appointment by the Secretary of Commerce unconstitutional. The Federal Circuit agreed, holding that APJs were principal officers because neither the Secretary nor Director had authority to review their decisions or remove them at will. As a remedy, the Federal Circuit invalidated APJs’ tenure protections, making them removable at will by the Secretary.
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