Supreme Court skeptical about patent judge appointments

WASHINGTON (AP) — The Supreme Court on Monday seemed likely to find that the judges who oversee patent disputes are not properly appointed, a case important to patent holders and inventors including major technology companies.

The question for the justices has to do with more than 250 administrative patent judges who make up the Patent Trial and Appeal Board, which was created by Congress in 2011. The court's decision could be disruptive to the functioning of the board, which issues hundreds of decisions a year. The justices' decision could also potentially affect more than 100 other similarly-appointed officials.

The case involves the Constitution’s Appointments Clause which lays out how government officials can be appointed. As the size of government has increased, a growing conservative legal movement has objected to unelected officials wielding vast amounts of power. Appointments Clause challenges have been one way to check that power.

On Monday, the court's conservative justices suggested that the administrative patent judges' appointment is problematic. Justice Brett Kavanaugh said during arguments that the decisions the judges make are “multi-million, sometimes billion-dollar, decisions being made not by someone who's accountable in the usual way” required by the Constitution's Appointments Clause.

And Justice Samuel Alito at one point suggested where the court seems to be headed by saying “let's assume that we agree...that this current scheme violates the Appointments Clause.” The justices were hearing arguments by phone because of the coronavirus pandemic.

The Supreme Court has recently agreed to hear a string of separation of powers cases involving the appointment and removal of various officials. This term, the court has three cases that touch on the issue. But last term, even when the court...