Arthrex v. Smith & Nephew ("Round 2")

Overview

The Fair Inventing Fund started in 2019 by filing an amicus brief in US v. Arthrex ("Round 1") to highlight how inventors underrepresented in our patenting and innovation ecosystem lack access to capital are especially deprived and harmed when those running the US Patent & Trademark Office are not legally authorized.  Arthrex, a global medical device company whose founder was conceived in Germany but born in Michigan to immigrant parents, came back to the Supreme Court in 2023 to show how the USPTO had ignored the Court's 2022 ruling and continued to violate the Federal Vacancies Reform Act.  Senate confirmation of properly nominated officials ensures the Separation of Powers principles are respected; Congress enacted the FVRA in 1998 to make sure regulatory agencies were not left to be managed by career bureaucrats or worse by those obedient to donors or companies employing lobbyists who capture agencies.  The FVRA and Separation of Powers are important safeguards of accountability and transparency that promote a more diverse and inclusive patent system. Without those safeguards, the PTO will continue to burden women and minority inventors disproportionately and deprive them of full participation in the patent system.  Unfortunately the Supreme Court declined to take the case.

The brief filed by Fair Inventing Fund can be viewed here.