Deep Dive 193 – Arthrex: The End of Patent Exceptionalism in the Administrative State?

The decision in United States v. Arthrex was extremely fractured, with a mix of majority, concurring, and dissenting opinions that cut across traditional jurisprudential divisions on the Supreme Court. Although the split majority held that the appointment of the Administrative Patent Judges at the Patent Trial & Appeal Board (PTAB) violates the Appointments Clause, the Court ultimately remedied this constitutional violation by revising the America Invents Act to give the Director of the U.S. Patent & Trademark Office (USPTO) more direct review and control over the decisions reached by the PTAB concerning the validity of patents. Although this makes the PTAB decision-making process at the USPTO more like the adjudicatory processes at other agencies, in which agency heads have direct oversight and control over their administrative law judges, it raises fundamental questions about the PTAB process created by Congress, which was supposed to consist of solely legal analyses of the statutory conditions for patentability, free from political influence.

Some have criticized the PTAB's operations for significant due process problems and other "shenanigans," but others have defended the PTAB as serving an important function as a corrective mechanism for mistakenly-issued patents that undermine the efficient operation of the innovation economy. This panel of experts discussed Arthrex and the ultimate effects that it may have in patent law, administrative law, and the innovation economy.

Featuring:
- Gary Lawson, Philip S. Beck Professor of Law, Boston University School of Law
- Kristen Osenga, Austin E. Owen Research Scholar & Professor of Law, University of Richmond School of Law
- Jonathan Stroud, Chief IP Counsel, Unified Patents
- [Moderator] Jennifer Mascott, Assistant Professor of Law and Co-Executive Director, C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School

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