Tomorrow the House Subcommittee on Courts, Intellectual Property, and the Internet will hold a hearing on the implications of the Federal Circuit’s recent decision on the constitutionality of the Patent Trial and Appeal Board (PTAB) under the Appointments Clause. I hope the hearing will spur Congress to act quickly, to address the dangers the Federal Circuit has introduced to patent adjudication at the PTAB. The easy statutory fix, described briefly below, would be to give the agency head final decisionmaking authority while restoring removal protections for administrative patent judges (APJs) at the PTAB.
In Arthrex, Inc., v. Smith & Nephew, Inc., issued at the end of last month, the Federal Circuit held that, under the statutory provisions of the Patent Act, APJs are principal officers for Appointments Clause purposes. As such, they are unconstitutional because they are not appointed by the President with advice and consent of the Senate. The court held that APJs are principal officers because, while the agency head has a significant level of supervision and oversight of APJs, the agency head does not have the power to review and reverse PTAB decisions and can remove APJs “only for such cause as will promote the efficiency of the service.” As Gary Lawson has argued elsewhere, the critical constitutional flaw at the PTAB is that the agency head lacks final decisionmaking authority, such that the APJs themselves are the final arbiters and thus principal officers at the agency.
To remedy this constitutional infirmity, the Federal Circuit severed APJs’ statutory removal restrictions, such that the agency head can remove APJs at will. By allowing the agency head to remove APJS at will, the Federal Circuit concluded, APJs become inferior officers for Appointments Clause purposes. This decision will no doubt garner extensive scholarly discussion. For instance, last week on this blog, Alan Morrison argued that the Federal Circuit’s remedial fix is flawed because the removal restrictions at issue are the general removal protections for federal employees in the Civil Service Reform Act (not specifically in the Patent Act) and not all principal officers have to be removed at will.
Putting aside whether its remedial fix is appropriate (or whether its underlying constitutional holding is correct), the Federal Circuit’s remedial decision introduces a great risk of unfairness and partiality in patent adjudication. As I have explored elsewhere, we already face constitutional tensions in agency adjudication between the necessity of political control of agency adjudicators under the Appointments Clause and the fear of political pressures improperly influencing agency adjudicative outcomes. As Justice Gorsuch put it in his dissent in Oil States Energy Services v. Greene’s Energy Group, “Powerful interests are capable of amassing armies of lobbyists and lawyers to influence (and even capture) politically accountable bureaucracies.”
Before the Federal Circuit’s remedial fix to the Appointments Clause issue, APJs enjoyed substantial decisional independence to decide cases based only on the law and facts and without concern of being punished for their decisions. After all, they had protection from removal but “for such cause as will promote the efficiency of the service.” Now that the agency head can remove APJs at will, however, such decisional independence is thrown into grave doubt. Parties will never know if the APJs are deciding cases based on the law and facts, or out of fear of retribution for not conforming with the agency head’s policy or political preferences.
Congress has an easy fix, one that it should make as soon as possible. Congress should amend the Patent Act to give the Secretary of Commerce final decisionmaking authority and to restore removal protections for APJs at the PTAB. By giving the agency head the final say, as Melissa Wasserman and I have detailed elsewhere, Congress would be conforming PTAB adjudication to almost all other agency adjudications in the modern administrative state. By restoring removal protections for APJs, Congress would be restoring the decisional independence critical for fair and impartial agency adjudication.
To be sure, this statutory solution does not remove political accountability from patent adjudication. The agency head will have the final say. But the parties and the reviewing court will know that PTAB decisions by APJs are based on the law and the facts (or at least not based on fear of losing their jobs) and will able to more fully assess the policy judgments of the agency head in the event that she decides to overview a PTAB decision. Moreover, as Melissa and I document, this statutory fix would bring PTAB adjudication within the mainstream of agency adjudication today where agency-head final-decisionmaking authority is a touchstone.