By James Lovsin — As discussed here, the Justices asked many questions in the oral argument in Arthrex this week on both questions: (1) whether there was an Appointments Clause defect and (2) if so, whether the Federal Circuit properly cured it. With respect to the first question, several of the Justices appeared skeptical that administrative patent judges are “inferior officers” as argued by the government and Smith & Nephew. Instead, the Court may well affirm the Federal Circuit’s holding that the appointment of administrative patent judges to the Patent Trial and Appeal Board violated the Appointments Clause. What was…
