Administrative patent judge
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Administrative patent judges (APJs) are a type of federal administrative adjudicator that decide cases before the Patent Trial and Appeal Board (PTAB), an administrative tribunal within the United States Patent and Trademark Office. APJs preside over special classes of administrative adjudication proceedings pertaining to the issuance of patents, including inter partes review.[1][2]
Background
- See also: Federal administrative adjudicators
Administrative patent judges (APJs) are a type of federal administrative adjudicator sometimes collectively referred to as administrative judges, or non-administrative law judge (ALJ) adjudicators. APJs preside over special classes of adjudication proceedings within the Patent and Trademark Office of the U.S. Department of Commerce (DOC) pertaining to the issuance of patents, including a patent reexamination process known as inter partes review.[3][4][5][2]
Non-ALJ adjudicators
Non-ALJ adjudicators are distinct from administrative law judges (ALJs). Unlike ALJs, non-ALJ adjudicators are not covered by the Administrative Procedure Act and their positions are not standardized across the government. Their work, titles, qualifications, and pay vary substantially. Non-ALJs preside over informal adjudication proceedings, which may involve a hearing or a written process. Non-ALJs conduct the majority of federal agency adjudication proceedings.[1]
There were more than 10,000 non-ALJ adjudicators working at various federal agencies as of February 2018, the most recent year for which comprehensive data was available at the time of this article's last update in March 2024, including the 7,856 patent examiners employed by the Patent and Trademark Office. The other largest employers of non-ALJs at the time were the Internal Revenue Service (714 non-ALJs), the Department of Veterans Affairs (630 non-ALJs), the National Labor Relations Board (600 non-ALJs), and the U.S. Department of Justice (326 non-ALJs).[1]
Noteworthy events
U.S. Supreme Court requires more supervision over administrative patent judges (2021)
In United States v. Arthrex, the United States Supreme Court on June 21, 2021, held 5-4 that the U.S. Constitution’s Appointments Clause does not allow administrative patent judges (APJs) to resolve patent disputes without increased supervision from higher-level agency officials. In its decision, the court decided to sever the parts of the patent statute that prevented the director of the Patent and Trademark Office (PTO) from unilaterally reviewing APJ decisions.[6]
Chief Justice John Roberts delivered the opinion of the court, writing that the PTO director’s lack of review power over APJ decisions gave APJs power that conflicted with the "design of the Appointments Clause ‘to preserve political accountability.'”[6]
The court’s ruling preserved the authority of the secretary of commerce to appoint APJs while increasing the supervision powers of the director of the Patent and Trademark Office.[6]
Federal appeals court finds PTAB structure unconstitutional, determines APJs to be inferior officers (2019)
A three-judge panel of the United States Court of Appeals for the Federal Circuit on October 31, 2019, held in Arthrex Inc. v. Smith & Nephew Inc. et al. that the structure of the Patent Trial and Appeal Board (PTAB) violates the Appointments Clause of the United States Constitution.[7][8]
Judges Kimberly Moore, Raymond Chen, and Jimmie V. Reyna identified a structural flaw in the PTAB's statutory scheme for appointing its administrative patent judges (APJs). Under the faulty system, the United States secretary of commerce appointed APJs. Once appointed, APJs enjoyed for-cause removal protections that only permitted removal by the secretary or the director of the U.S. Patent and Trademark Office for “such cause as will promote efficiency of the service.”[7][8]
The judges held that APJs exercise significant authority that qualifies them as principal, rather than inferior, officers. As such, APJs must be directly appointed by the president with the advice and consent of the United States Senate pursuant to the Appointments Clause.[7][8]
Instead of changing the method of appointing APJs, however, the court cited precedent set forth in Free Enterprise Fund v. Public Company Accounting Oversight Board to propose removing APJs’ for-cause removal protections in order to classify them as inferior officers. Without protections against removal, the judges stated that APJs would be considered inferior officers subject to at-will removal by the director of the U.S. Patent and Trademark Office.[7][8]
“We believe that this, the narrowest revision to the scheme intended by Congress for reconsideration of patent rights, is the proper course of action and the action Congress would have undertaken,” wrote Moore.[7]
The court’s decision could result in the rehearing of 50 to 70 cases before the board.[7]
See also
- Concepts, terms, and definitions related to the administrative state
- Ballotpedia's administrative state coverage
External links
Footnotes
- ↑ 1.0 1.1 1.2 Administrative Conference of the United States, "Non-ALJ Adjudicators in Federal Agencies: Status, Selection, Oversight, and Removal," February 14, 2018
- ↑ 2.0 2.1 Fenwick & West LLP, "Administrative Patent Judges: Not Your Typical Federal Judge," July 10, 2014
- ↑ Cite error: Invalid
<ref>tag; no text was provided for refs namedgov - ↑ U.S. Department of Justice, "BOARD OF IMMIGRATION APPEALS," accessed July 6, 2018
- ↑ The Regulatory Review, "Headless Agency Adjudication at the Patent Office," May 1, 2018
- ↑ 6.0 6.1 6.2 Supreme Court of the United States, "Unites States v. Arthrex," June 21, 2021
- ↑ 7.0 7.1 7.2 7.3 7.4 7.5 Reuters, "U.S. patent board is unconstitutional, but problem can be fixed: appeals court," October 31, 2019
- ↑ 8.0 8.1 8.2 8.3 United States Court of Appeals for the Federal Circuit, "Arthrex Inc v Smith & Nephew Inc et al," October 31, 2019
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