This blog previously reported[1] that on June 21, 2021, the Supreme Court issued its landmark decision in United States v. Arthrex, Inc., holding – in Chief Justice Roberts’ 5-4 opinion – that “the unreviewable authority wielded by [administrative patent judges, or APJs] during inter partes review [IPR] is incompatible with their appointment by the Secretary [of Commerce] to an inferior office.”[2] To resolve this constitutional defect in the IPR process, the Arthrex decision instructed that the director of the United States Patent and Trademark Office (USPTO) “may review final [Patent Trial and Appeal Board, or PTAB] decisions and, upon review, may issue decisions himself on behalf of the Board.”[3] The Court explained that this change in the director’s ability to supervise APJs (in adjudicating IPR petitions at the PTAB) was consistent with the rule that “the exercise of executive power by inferior officers must at some level be subject to the direction and supervision of an officer nominated by the President and confirmed by the Senate.”[4]
But what about the PTAB’s older sibling, the Trademark Trial and Appeal Board (TTAB)? Created through a Lanham Act amendment in 1958,[5] the TTAB is an administrative body at the USPTO that hears and decides various proceedings involving trademarks, such as oppositions and cancellations. Like the PTAB, which is composed of APJs, the TTAB is composed of administrative trademark judges, or ATJs. Like PTAB proceedings, TTAB proceedings are typically conducted before a panel of three ATJs, who preside over discovery, review briefing, hold hearings and issue final decisions. So, after Arthrex, are ATJs unconstitutionally appointed principal officers like their APJ cousins?