The appeals court agreed, ruling that the judges performed important work without supervision and so were “principal officers” under the Constitution, meaning that they had to be appointed by the president and confirmed by the Senate.
On Monday, Justice Sonia Sotomayor asked how it was possible to reconcile judicial independence, even for administrative judges, and presidential control. “Isn’t that totally at odds with an adjudicatory system of any kind?” she said.
Mark A. Perry, a lawyer for Smith & Nephew, said that conflict justified a flexible approach by Congress, one that should allow the current system. “There is an inherent tension in agency adjudicatory-type proceedings between adjudicative independence and presidential control,” he said, “and that balance can be struck by Congress in many, many ways and throughout history has been struck in many, many ways so long as the channels of authority are preserved.”
But Jeffrey A. Lamken, a lawyer for Arthrex, said more supervision was required for executive-branch officials who have the “final word resolving billion-dollar disputes affecting the innovation landscape.”
“For the parties aggrieved by the loss of valuable rights,” he said, “there’s no superior they can go to to ask them to countermand that bad decision.”
The appeals court’s solution to the constitutional problem was to strike down a part of the law that protected the patent judges from being fired without cause. This effectively demoted them from “principal officers,” the appeals court said.
The Supreme Court did not seem likely to adopt that particular fix, and there did not appear to be a consensus about what should follow from a ruling that the patent judges had been appointed in violation of the Constitution.