Government Claims in Arthrex Catch Eye of House Judiciary
As we await the SCOTUS outcome in Arthrex, the Government Accountability Office (GAO) has been tasked with investigating the degree to which the Director might influence individual PTAB outcomes. In a letter to the GAO from House Judiciary IP Subcommittee Chairman Hank Johnson (D-Ga.) and Ranking Member Darrell Issa (R-Calif.), it was pointed out that the U.S. government has argued in Arthrex that APJs are inferior officers because they are “subject to significant oversight and control by the Director of the USPTO” who has the ability to “control which APJs decide which cases” and “provid[e] policy directives that APJs are obligated to follow.”
The letter (here) expressed a concern that the government has effectively indicated that “PTAB cases may have been decided based on factors outside of the evidentiary record and public legal authority,” which they argued “raises potential due process concerns and would be inconsistent with the intent of Congress in enacting the AIA.” While political appointees are expected to drive overall policy, of course, they are not expected to meddle in individual outcomes. Accordingly, the Subcommittee has tasked the GAO with investigating eight questions designed to explore the Director’s ability to influence individual PTAB decisions, and any instances where the Director has actually influenced the outcome of a decision.
Continue Reading Congress Questions USPTO Director Input to PTAB Trial Outcomes