This week, the Supreme Court granted certiorari in a set of related cases between Arthrex and Smith & Nephew, as well as the federal government. The cases revolve around one fundamental question: are judges of the Patent Trial and Appeal Board (PTAB) principal officers of the United States? That question controls the constitutionality of their appointment. A principal officer must be appointed with the advice and consent of the Senate; an inferior officer’s appointment can be delegated to a department head. PTAB judges are appointed by the Secretary of Commerce, not via advice and consent, meaning that they are only properly appointed if they are inferior officers.
While this case focuses on PTAB judges, it seems likely that the Court took it to more broadly explain the distinction between inferior and principal officers, a distinction likely to have impacts throughout the federal government.
