“The question presented is the same as that in Arthrex Inc. v. Smith & Nephew, Inc., Arthrocare Corp; and United States of America, No. 22-639 (filed January 8, 2023):”
“The Federal Vacancies Reform Act of 1998 (‘FVRA’) establishes ‘the exclusive means for temporarily authorizing an acting official to perform the functions and duties’ of a vacant presidentially appointed, Senate- confirmed office. 5 U.S.C. § 3347(a). The FVRA specifies which individuals are eligible to serve as acting officers and for how long. Id. §§ 3345, 3346. In this case, the U.S. Patent and Trademark Office (‘PTO’) invoked its general delegation authority to adopt a succession plan that differs from the exclusive options set forth in the FVRA. The PTO’s Director is a presidentially appointed, Senate-confirmed officer. But the PTO’s Agency Organization Order 45-1 provides for the Commissioner for Patents to run the agency when the positions of Director and Deputy Director are both vacant. Pursuant to that order, Commissioner for Patents Andrew Hirshfeld, performing the functions and duties of the Director, denied review of a Patent Trial and Appeal Board ruling that invalidated Arthrex’s patent claims in an inter partes review.”
“The question presented is: Whether the Commissioner for Patents’ exercise of the Director’s authority pursuant to an internal agency delegation violated the Federal Vacancies Reform Act.”
