The government presented the following questions: 1. “Whether the administrative patent judges of the Patent Trial and Appeal Board are inferior officers of the United States under the Appointments Clause, U.S. Const. art. II, § 2, cl. 2, such that Congress permissibly vested their appointments in a department head, rather than principal officers who must be nominated by the President and confirmed by the Senate.” 2. “Whether this Court should entertain an Appointments Clause challenge a litigant forfeited by failing to raise it before the agency.” 3. “How to remedy any Appointments Clause defect in the Patent Trial and Appeal Board.”
Arthrex presented the following questions: 1. “Whether Congress would have enacted the IPR statute, 35 U.S.C. §311 et seq., creating quasi-judicial review of issued patents, without tenure protections for APJs necessary to ensure their independence and impartiality.” 2. “Whether APJs remain principal officers under the Constitution even without tenure protections when they still have the power to issue Final Written Decisions absent meaningful review by an officer nominated by the President and confirmed by the Senate.”
Smith & Nephew presented the following questions: 1. “Whether Administrative Patent Judges are inferior or principal officers of the United States.” 2. “If APJs are principal officers, what remedy is warranted for any defect in their appointment.”
