A lot of attention in any intellectual property case is paid to either the plaintiff or the defendant, or both, and rightfully so: theirs is the dispute at the heart of the case. Far less attention is given to the judges in any of those cases, which again seems as it should be; like a referee or umpire at a sporting event, the job is to adjudicate the action between the two main parties and apply the rules as written, and if you’re becoming a principal actor in the story the chances are you’re doing something wrong. But what if you’re not supposed to be refereeing the game in the first place?
Among the many decisions handed down by the Supreme Court in its most recent session was one that garnered less attention but could have ranging effects in the IP world. In hearing an appeal on what originated as a patent case between two medical tech companies, the court upheld a lower court ruling that judges on the Patent Trial and Appeal Board have been improperly appointed.
The issue, in this case, is exactly how much power was granted to the Patent Trial and Appeal Board judges, given that they were not subject to the Senate confirmation process that other judges in similar positions are. Per the ruling of the majority of the court, as de facto “principal officials”, the judges on the board had the power to make decisions that were outside of review and had the power to bind the executive branch to those decisions. Those powers they deemed outsized for judges that were placed in their roles outside of the typical appointment process.
The solution applied by the majority of the court was to allow the director of the U.S. Patent and Trademark Office to review the rulings of those judges under a previously passed law, thus denying them the autonomy that made their position legally untenable to those justices. It’s a simpler fix than altering the process for appointing those judges, but one that raised other questions for the dissenting justices, who voiced concern about having a director review those decisions while still conceding the solution in this case.
Unless you’re an avid watcher of the judiciary, the decision and the case are a bit in the weeds; judicial appointments and who has what power are admittedly important but feel a bit technocratic when your concern is outcomes, even when conceding how important the process is. But given how sweeping patent decisions can be, and how much money is often at stake, it’s certainly warranted to pay attention to who is making those decisions, and worth considering how those decisions may change now that there’s a process to review them.