Brief Of Amicus Curiae Professor Andrew Michaels Supporting No Party: in the Supreme Court, United States v. Arthrex, Inc.

Abstract

The Federal Circuit's decision to treat Halloween 2019 as the effective date of its as applied severance fix striking removal protections on Administrative Patent Judges was simply wrong in that it is contrary the fundamental legal principal of judicial retroactivity. The fix, like any judicial statement of law, should at least presumptively be considered retroactive, such that the APJs were always removable at will; they did not spookily change from unconstitutional to constitutional on Halloween as the Federal Circuit held. As a result of the Federal Circuit's blunder on this issue, roughly one hundred pending appeals of final written decisions from the Patent Trial and Appeal Board were vacated and remanded for rehearing, and those matters are now stayed before the agency pending the outcome of this case. This wasteful and legally improper Kafkaesque multiplication of administrative hearings does not reflect well on the patent system or the legal system in general, and could be avoided through a straightforward application of the Supreme Court's retroactivity jurisprudence.