John Linzer Serves as Counsel of Record for Amicus Curiae Brief on High Profile Arthrex Cases Before U.S. Supreme Court

Milwaukee – The national law firm of Quarles & Brady LLP today announced that John Linzer, a partner in the firm’s Intellectual Property Practice Group, served as counsel of record for the amicus curiae brief filed by the Intellectual Property Law Association of Chicago (IPLAC) related to three consolidated cases involving Arthrex Inc. being heard this week by the United States Supreme Court.

The cases focus on whether administrative patent judges of the Patent Trial and Appeal Board (PTAB) of the U.S. Patent and Trademark Office (USPTO) are constitutionally appointed. The consolidated cases question whether administrative patent judges are principal officers who must be appointed by the President with the Senate’s advice and consent, or “inferior Officers” whose appointment Congress has permissibly vested in a department head. Additionally, the Court has questioned if it was proper for the lower court to cure the Appointments Clause defect by removing the PTAB judges' statutory right to be removed only for "cause."

In its amicus brief, IPLAC argued that the U.S. Supreme Court should reverse the Court of Appeals for the Federal Circuit and find that administrative patent judges are inferior Officers whose appointment Congress has permissibly vested in the Secretary of Commerce, in consultation with the director of the USPTO. IPLAC further argued that the Supreme Court does not need to address the second issue to eliminate any alleged defect in the current statutory scheme.

“The Arthrex cases have the potential to severely disrupt the patent examination and post-grant review processes,” said Linzer. "In addition to its role in deciding post-grant challenges, the PTAB also resolves thousands of appeals each year for patent applications still under examination. The Patent Office has conceded that if PTAB judges were appointed unconstitutionally, that infirmity also extends to those ex parte appeals, and the Federal Circuit has tacitly agreed to as much in a subsequent decision."

Linzer is a member of the firm's Chicago office and counsels clients on utility and design patents. His work includes analyzing and building comprehensive patent portfolios and rendering opinions on issues of claim construction, infringement and validity, and preparing, filing and prosecuting U.S. and foreign patent applications. His experience spans a range of industries from the high tech sectors of medical informatics and nuclear reactors to the mechanical arts, including consumer products such as athletic wear, golf equipment, handheld tools and household cleaning and pest control products.