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Last month, the Supreme Court heard oral arguments for a case called Arthrex, Inc. v. United States which could have a significant impact on the world of patents but, even more profoundly, on the whole of the administrative state. The argument presented by the lower court is that Administrative Patent Judges (APJs) of the Patent Trial and Appeal Board (PTAB) wield too much power to not be approved by Senate confirmation. Rather than requiring appointment, the Federal Circuit decided to subordinate the APJs to political directors by stripping them of employment protections which are instituted to ensure the crucial Due Process protections of patent holders. The Federal Circuit’s analysis and remedy did not come out of left field. They were the inevitable product of decades of unitary executive theory and skepticism towards the administrative state.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on April 26, 2021. The original post can be accessed via the Archived Link button above.

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