U.S. Supreme Court reins in power of patent tribunal judges

On Monday, the U.S. Supreme Court allowed a U.S. Patent and Trademark Office tribunal that has gained a reputation for canceling patents to continue operating, but reined in the power of its in-house judges.

In a 5-4 ruling authored by Chief Justice John Roberts, the justices upheld a 2019 lower court decision 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.

Andrew Chung for Reuters:

While the Supreme Court’s majority found that the administrative patent judges were improperly appointed, a different majority of justices also concluded that the problem could be fixed under the Constitution by giving the Patent and Trademark Office’s director the power to review decisions by the judges.

Noting that billions of dollars can turn on a decision by the board, Roberts wrote, “What matters is that the director have the discretion to review decisions rendered by APJs (administrative patent judges). In this way, the president remains responsible for the exercise of executive power – and through him, the exercise of executive power remains accountable to the people.”

The solution prescribed by the justices would allow the tribunal to continue to operate, though the Patent and Trademark Office has already said more than 100 cases will have to be reconsidered.

The board, an administrative court run by the Patent and Trademark Office, takes a second look at patents issued by the agency and often cancels them, much to the dismay of some inventors. The tribunal, created by Congress in 2011, adjudicates the validity of hundreds of patents annually and has invalidated more than 2,000 patents.

The tribunal’s reviews have become a quick and cheap way for companies that are prime targets for infringement suits, such as such as Apple Inc and Alphabet Inc’s Google, to try to invalidate patents. Litigation before the tribunal is seen by many companies as a more efficient alternative to resolving cases in federal court.

MacDailyNews Note: The four dissenting Supreme Court Justices deemed the ruling unnecessary. “Just who are these ‘principal’ officers that Congress unsuccessfully sought to smuggle into the executive branch without Senate confirmation? About 250 administrative patent judges who sit at the bottom of an organizational chart,” wrote conservative Justice Clarence Thomas, joined by the court’s three liberal justices.