Rovi Guides, Inc. v. Comcast Cable Communications, LLC, et al.

The Appointments Clause of the Constitution requires principal officers to be appointed by the President with the advice and consent of the Senate, but permits inferior officers to be appointed by department heads. This case concerns the appointment of administrative patent judges of the Patent Trial and Appeal Board. Administrative patent judges issue final decisions with respect to patentability that are not reviewable by any superior executive officer, and they are removable from office only for cause. Nonetheless, administrative patent judges are appointed by the Secretary of Commerce. In Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019), the Federal Circuit held that administrative patent judges are principal officers and hence that their appointment by the Secretary of Commerce is unconstitutional. The court attempted to remedy the constitutional defect by severing and invalidating administrative patent judges’ tenure protections, which, the court of appeals held, rendered administrative patent judges inferior officers. The court of appeals remanded these cases to the Board based on its decision in Arthrex. The questions presented are:

1. Whether the severance and invalidation of administrative patent judges’ tenure protections is consistent with congressional intent.

2. Whether invalidation of administrative patent judges’ tenure protections is sufficient to render them inferior officers.