SCOTUS has agreed to hear arguments in connection with three consolidated Arthrex cases – United States v. Arthrex (19-1434), Smith & Nephew v. Arthrex (19-1452) and Arthrex v Smith & Nephew (19-1458). However, SCOTUS has indicated that it’s review will be limited to the issues of:
- Whether APJ’s of the USPTO are principal officers or inferior officers; and
- Whether, if APJ’s are principal officers, the Federal Circuit cured any Article II defect by rendering the APJ’s terminable at will.
If APJ’s are principal officers they must be appointed by the President, with Senate approval. On the other hand, if APJ’s are inferior officers, their appointment is permissibly vested in a department head.