Administrative State
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Administrative patent judges (APJs) are a type offederal administrative adjudicator that decide cases before the Patent Trial and Appeal Board (PTAB), an administrative tribunal within the United States Patent and Trademark Office. APJs preside over special classes of administrative adjudication proceedings pertaining to the issuance of patents, includinginter partes review.^[1][2]

Background

See also:Federal administrative adjudicators

Administrative patent judges (APJs) are a type offederal administrative adjudicator sometimes collectively referred to asadministrative judges, or non-administrative law judge (ALJ) adjudicators. APJs preside over special classes ofadjudication proceedings within the Patent and Trademark Office of theU.S. Department of Commerce (DOC) pertaining to the issuance of patents, including a patent reexamination process known asinter partes review.^[3][4][2]

Non-ALJ adjudicators

Non-ALJ adjudicators are distinct fromadministrative law judges (ALJs). Unlike ALJs, non-ALJ adjudicators are not covered by theAdministrative Procedure Act and their positions are not standardized across the government. Their work, titles, qualifications, and pay vary substantially. Non-ALJs preside overinformal adjudication proceedings, which may involve a hearing or a written process. Non-ALJs conduct the majority of federal agency adjudication proceedings.^[1]

There were more than 10,000 non-ALJ adjudicators working at various federal agencies as of February 2018, the most recent year for which comprehensive data was available at the time of this article's last update in March 2024, including the 7,856 patent examiners employed by the Patent and Trademark Office. The other largest employers of non-ALJs at the time were theInternal Revenue Service (714 non-ALJs), theDepartment of Veterans Affairs (630 non-ALJs), theNational Labor Relations Board (600 non-ALJs), and theU.S. Department of Justice (326 non-ALJs).^[1]

Noteworthy events

U.S. Supreme Court requires more supervision over administrative patent judges (2021)

InUnited States v. Arthrex, theUnited States Supreme Court on June 21, 2021, held 5-4 that the U.S. Constitution’s Appointments Clause does not allow administrative patent judges (APJs) to resolve patent disputes without increased supervision from higher-level agency officials. In its decision, the court decided to sever the parts of the patent statute that prevented the director of the Patent and Trademark Office (PTO) from unilaterally reviewing APJ decisions.^[5]

Chief JusticeJohn Roberts delivered the opinion of the court, writing that the PTO director’s lack of review power over APJ decisions gave APJs power that conflicted with the "design of the Appointments Clause ‘to preserve political accountability.'”^[5]

The court’s ruling preserved the authority of the secretary of commerce to appoint APJs while increasing the supervision powers of the director of the Patent and Trademark Office.^[5]

Federal appeals court finds PTAB structure unconstitutional, determines APJs to be inferior officers (2019)

A three-judge panel of theUnited States Court of Appeals for the Federal Circuit on October 31, 2019, held inArthrex Inc. v. Smith & Nephew Inc. et al. that the structure of the Patent Trial and Appeal Board (PTAB) violates the Appointments Clause of theUnited States Constitution.^[6][7]

JudgesKimberly Moore,Raymond Chen, andJimmie V. Reyna identified a structural flaw in the PTAB's statutory scheme for appointing its administrative patent judges (APJs). Under the faulty system, the United States secretary of commerce appointed APJs. Once appointed, APJs enjoyed for-cause removal protections that only permitted removal by the secretary or the director of the U.S. Patent and Trademark Office for “such cause as will promote efficiency of the service.”^[6][7]

The judges held that APJs exercise significant authority that qualifies them as principal, rather than inferior, officers. As such, APJs must be directly appointed by the president with theadvice and consent of theUnited States Senate pursuant to the Appointments Clause.^[6][7]

Instead of changing the method of appointing APJs, however, the court cited precedent set forth inFree Enterprise Fund v. Public Company Accounting Oversight Board topropose removing APJs’ for-cause removal protections in order to classify them as inferior officers. Without protections against removal, the judges stated that APJs would be considered inferior officers subject to at-will removal by the director of the U.S. Patent and Trademark Office.^[6][7]

“We believe that this, the narrowest revision to the scheme intended by Congress for reconsideration of patent rights, is the proper course of action and the action Congress would have undertaken,” wroteMoore.^[6]

The court’s decision could result in the rehearing of 50 to 70 cases before the board.^[6]

See also

• Concepts, terms, and definitions related to the administrative state
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External links

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Footnotes

v • e The Administrative State Main The Administrative State Project main page •Administrative State Project Index •Glossary of administrative state terms •Quotes about the administrative state •Administrative state •Rulemaking •Deference •Adjudication •Nondelegation doctrine •Ballotpedia's administrative state legislation tracker Pillars Agency control •Executive control •Judicial control •Legislative control •Public control Reporting Changes to the Federal Register •Completed OIRA review of federal administrative agency rules •Federal agency rules repealed under the Congressional Review Act •Historical additions to the Federal Register, 1936-2016 Laws Administrative Procedure Act •Antiquities Act •Civil Service Reform Act •Clayton Antitrust Act •Communications Act of 1934 •Congressional Review Act •Electronic Freedom of Information Act •Federal Food, Drug, and Cosmetic Act of 1938 •Federal Housekeeping Statute •Federal Reserve Act •Federal Trade Commission Act of 1914 •Freedom of Information Act •Government in the Sunshine Act •Independent Offices Appropriations Act of 1952 •Information Quality Act •Interstate Commerce Act •National Labor Relations Act •Paperwork Reduction Act •Pendleton Act •Privacy Act of 1974 •Regulatory Flexibility Act •REINS Act •REINS Act (Wisconsin) •Securities Act of 1933 •Securities Exchange Act of 1934 •Sherman Antitrust Act •Small Business Regulatory Enforcement Fairness Act •Truth in Regulating Act •Unfunded Mandates Reform Act Cases Abbott Laboratories v. Gardner •A.L.A. Schechter Poultry Corp. v. United States •Association of Data Processing Service Organizations v. Camp •Auer v. Robbins •Chevron v. Natural Resources Defense Council •Citizens to Preserve Overton Park v. Volpe •Federal Trade Commission (FTC) v. Standard Oil Company of California •Field v. Clark •Food and Drug Administration v. Brown and Williamson Tobacco Corporation •Humphrey's Executor v. United States •Immigration and Naturalization Service (INS) v. Chadha •J.W. Hampton Jr. & Company v. United States •Lucia v. SEC •Marshall v. Barlow's •Massachusetts v. Environmental Protection Agency •Mistretta v. United States •National Federation of Independent Business (NFIB) v. Sebelius •National Labor Relations Board v. Noel Canning Company •National Labor Relations Board v. Sears, Roebuck & Co. •Panama Refining Co. v. Ryan •Securities and Exchange Commission v. Chenery Corporation •Skidmore v. Swift & Co. •United States v. Lopez •United States v. Western Pacific Railroad Co. •Universal Camera Corporation v. National Labor Relations Board •Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council •Wayman v. Southard •Weyerhaeuser Company v. United States Fish and Wildlife Service •Whitman v. American Trucking Associations •Wickard v. Filburn •Wiener v. United States Terms Adjudication (administrative state) •Administrative judge •Administrative law •Administrative law judge •Administrative state •Arbitrary-or-capricious test •Auer deference •Barrier to entry •Bootleggers and Baptists •Chevron deference (doctrine) •Civil servant •Civil service •Code of Federal Regulations •Codify (administrative state) •Comment period •Compliance costs •Congressional Record •Coordination (administrative state) •Deference (administrative state) •Direct and indirect costs (administrative state) •Enabling statute •Ex parte communication (administrative state) •Executive agency •Federal law •Federal Register •Federalism •Final rule •Formal rulemaking •Formalism (law) •Functionalism (law) •Guidance (administrative state) •Hybrid rulemaking •Incorporation by reference •Independent federal agency •Informal rulemaking •Joint resolution of disapproval (administrative state) •Major rule •Negotiated rulemaking •Nondelegation doctrine •OIRA prompt letter •Organic statute •Pragmatism (law) •Precautionary principle •Promulgate •Proposed rule •Publication rulemaking •Regulatory budget •Regulatory capture •Regulatory dark matter •Regulatory impact analysis •Regulatory policy officer •Regulatory reform officer •Regulatory review •Rent seeking •Retrospective regulatory review •Risk assessment (administrative state) •Rulemaking •Separation of powers •Significant regulatory action •Skidmore deference •Statutory authority •Substantive law and procedural law •Sue and settle •Sunset provision •Unified Agenda of Federal Regulatory and Deregulatory Actions •United States Code •United States Statutes at Large Bibliography "Administrative Law - The 20th Century Bequeaths an 'Illegitimate Exotic' in Full and Terrifying Flower" by Stephen P. Dresch (2000) "Confronting the Administrative Threat" by Philip Hamburger and Tony Mills (2017) "Constitutionalism after the New Deal" by Cass R. Sunstein (1987) Federalist No. 23 by Alexander Hamilton (1787) "From Administrative State to Constitutional Government" by Joseph Postell (2012) "Interring the Nondelegation Doctrine" by Eric A. Posner and Adrian Vermeule (2002) "Rulemaking as Legislating" by Kathryn Watts (2015) "The Checks & Balances of the Regulatory State" by Paul R. Verkuil (2016) "The Myth of the Nondelegation Doctrine" by Keith E. Whittington and Jason Iuliano (2017) "The Progressive Origins of the Administrative State: Wilson, Goodnow, and Landis" by Ronald J. Pestritto (2007) "The Rise and Rise of the Administrative State" by Gary Lawson (1994) "The Study of Administration" by Woodrow Wilson (1887) "The Threat to Liberty" by Steven F. Hayward (2017) "Why the Modern Administrative State Is Inconsistent with the Rule of Law" by Richard A. Epstein (2008) Agencies Administrative Conference of the United States •United States Civil Service Commission •U.S. Government Accountability Office •U.S. Office of Information and Regulatory Affairs •U.S. Office of Management and Budget