The Supreme Court on Tuesday granted a trio of petitions seeking review of a decision by the U.S. Court of Appeals for the Federal Circuit holding that administrative patent judges of the Patent Trial and Appeal Board of the U.S. Patent and Trademark Office must be appointed by the president and confirmed by the Senate. To fix the problem, the Federal Circuit ruled that federal laws that place restrictions on when officials can be removed from office cannot apply to administrative patent judges, and it sent the dispute back for a new hearing. More broadly, the court of appeals indicated that both its ruling and its remedy would apply to other cases in which the litigants argued that the judges’ appointment violated the Constitution. The justices consolidated the three petitions (United States v. Arthrex, Smith & Nephew, Inc. v. Arthrex and Arthrex v. Smith & Nephew, Inc.) for one hour of argument and directed the litigants to address two questions, outlined in a July 22 memorandum by the federal government, in their briefs: whether the administrative patent judges must be appointed by the president and confirmed by the Senate; and, if so, whether the remedy that the Federal Circuit imposed was the appropriate one.

There were no other grants on Tuesday’s order list. The justices denied several cases that they had relisted after their “long” conference on Sept. 29, including a California woman’s challenge to the seizure of guns after police took her husband into custody on a “mental health hold,” a case involving whether state laws providing for the quick dismissal of lawsuits intended to silence opposing viewpoints apply in federal lawsuits based on diversity, and a decision by the U.S. Court of Appeals for the 9th Circuit finding that Idaho prison officials violated the Eighth Amendment by refusing to provide a transgender inmate with gender reassignment surgery.

The justices denied review in a case involving the interpretation of a 1996 federal law that gives internet platforms immunity from some lawsuits. Justice Clarence Thomas wrote a statement regarding the denial of review in which he agreed with the Supreme Court’s decision not to take up the case but argued that, “in an appropriate case, we should consider whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by Internet platforms.”

The justices meet for their next conference on Friday. We expect orders from that conference on Monday, Oct. 19, at 9:30 a.m.

This article was originally published at Howe on the Court.

Posted in Idaho Department of Correction v. Edmo, Retzlaff v. Van Dyke, Malwarebytes Inc. v. Enigma Software Group USA, LLC, U.S. v. Arthrex Inc., Arthrex Inc. v. Smith & Nephew Inc., Rodriguez v. City of San Jose, California, Smith & Nephew Inc. v. Arthrex Inc., Featured, Merits Cases

Recommended Citation: Amy Howe, Supreme Court will consider constitutional status of administrative patent judges, SCOTUSblog (Oct. 13, 2020, 10:57 PM),