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 of the United States 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.” 4. “Whether the Arthrex panel’s decision to excuse a challenger’s forfeiture of an Appointments Clause challenge applies automatically to excuse forfeiture in future cases, or whether this Court’s ordinary forfeiture rules apply.”
Samsung presented the following questions: 1. “Whether litigants who failed to raise an Appointments Clause challenge before the Patent Trial and Appeal Board (the ‘PTAB’ or ‘Board’) should be permitted to raise such a challenge on appeal, where there are other cases properly presenting the issue already before this Court.” 2. “Whether Board Administrative Patent Judges (‘APJs’) are inferior or principal officers of the United States for purposes of the constitution’s Appointments Clause.” 3. “If APJs are principal officers, what remedy is warranted for this and similarly-situated cases.”
