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It is impossible to read the Supreme Court’s decision in Arthrex without realizing that the Court was saying that to salvage the unconstitutional hiring of APJs it is necessary for an officer of the United States who has been nominated by the President and confirmed by the Senate to have final decision-making authority, or by an Acting Director temporarily vested with such authority under the Federal Vacancies Reform Act (FVRA). When the Supreme Court remanded the case to the USPTO there was no “Acting Director” as that term is defined under the FVRA, but in Arthrex II the Federal Circuit held that the Commissioner for Patents who was then “performing the functions and duties” of the Director by delegation did not violate the Appointments Clause, the FVRA, or the Constitution’s separation of powers.
Arthrex is now seeking review by the Supreme Court, and while they have dropped their Constitutional arguments, the question of whether the government violated the FVRA remains. This is an important question not only for the USPTO, but for other agencies as well, and has become a hot potato of sorts that is certain to come up again and again in the future.
During this webinar, on Tuesday, April 18, 2023, at 12:00 PM ET, the panel consisting of Robert Kry, a Partner at MoloLamken LLP (who represented Arthrex in the case), Joseph Matal, a Partner in the Intellectual Property Practice Group at Haynes and Boone, LLP (who previously “performed the duties and functions” of the Director at the USPTO), and Gene Quinn, President & CEO of IPWatchdog, Inc., will tackle the fundamental whether underpinning the case, which relates to which (if any) of the USPTO Director’s functions and duties are delegable. More specifically, the panel will address:
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