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This article appeared in The Intellectual Property Strategist, an ALM/Law Journal Newsletters publication that provides a practical source of both business and litigation tactics in the fast-changing area of intellectual property law, including litigating IP rights, patent damages, venue and infringement issues, inter partes review, trademarks on social media – and more.

Proving that even the driest of constitutional issues can have significant practical effect, the United States Supreme Court recently heard argument in United States v. Arthrex, Inc., et al., No. 19-1434. Before the Court was whether administrative judges (APJs) of the United States Patent and Trademark Office’s (USPTO) Patent Trial and Appeal Board (PTAB) have been appointed unconstitutionally under the America Invents Act (2011), particularly in view of their adjudicatory function in connection with inter partes review proceedings (IPRs). More specifically, are such judges “principal officers” under the Appointments Clause of Article II, Section, Two, Clause Two of the U.S. Constitution such that, to pass muster, they must be appointed by the President and confirmed by the U.S. Senate? Or are they instead “inferior” officers, properly appointed by the Commerce Secretary in consultation with the Director of the USPTO (Director)?

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