Two more judges from the U.S. Court of Appeals for the Federal Circuit have weighed in with criticisms of October’s blockbuster appointments clause decision Arthrex v. Smith & Nephew, even as the full court weighs whether to reconsider the case en banc.
Judges Todd Hughes and Evan Wallach issued a concurring opinion Friday saying they don’t agree that the U.S. Patent and Trademark Office’s 275 administrative patent judges are principal officers who are subject to confirmation by the U.S. Senate. Given the USPTO director’s “significant control” over their activities, “APJs are inferior officers already properly appointed by the Secretary of Commerce,” Hughes wrote in Polaris Innovations v. Kingston Technology.
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