Vilox Technologies, LLC v. Andre Iancu, Director, United States Patent and Trademark Office

The Leahy-Smith America Invents Act, Pub. L. No. 112-29, sec. 35, 125 Stat. 284 (2011) (“AIA”) created a scheme whereby issued patents are challenged before a panel of administrative patent judges (“APJs”). Under the AIA, the Secretary of Commerce appoints all APJs, except for the Director of the Patent Office who is appointed by the President. Id., 125 Stat. 313, § 6(a). Patent holders challenged the APJs’ appointment under the Appointment Clause, and the U.S. Court of Appeals for the Federal Circuit found that as principal officers, APJs could not be appointed by the Secretary. The court of appeals’ remedy was to sever “for cause” termination protection from the Patent Act, supposedly to downgrade APJs to inferior officers who could properly be appointed by the Secretary. Numerous petitions are now before the Court seeking review of one or more aspects of this holding. E.g., Nos. 19-1434, -1452, -1458, -1459, 20-74 and -92. The present petition (No. 20-74) is a mass hold petition filed by the Government. This cross-petition adopts the Arthrex patentee’s challenge of the severance remedy (19-1458) while supplying additional reasons for the cert grant, and requests a hold in light of the Government’s mass hold petition. The questions presented are: 1. Whether the court of appeals’ severance remedy of the Appointments Clause violation of Administrative Patent Judges (APJs) is consistent with congressional intent, where Congress has long considered