Supreme Court Reins in Power of Patent Tribunal Judges

The U.S. Supreme Court on Monday reined in the power of in-house judges serving on a U.S. Patent and Trademark Office tribunal that has gained a reputation for canceling patents, ruling that the way they are selected is unconstitutional.

The justices upheld a 2019 lower court ruling that the judges on the Patent Trial and Appeal Board were appointed in a way that violates a U.S. Constitution provision intended to ensure accountability for powerful government officials. The U.S. government had appealed the lower court ruling.

Privately held Florida-based Arthrex Inc had brought the challenge after the tribunal's partial cancellation of one of the company's patents amidst the company's dispute with British-based rival Smith & Nephew PLC.

While the justices found that the patent judges had been improperly appointed, they concluded that the problem could be fixed under the Constitution by ensuring decisions by the judges can be reviewed by the agency's director.