Legal Docket - United States v. Arthrex: S2.E10

JENNY ROUGH, HOST: Josh Malone is an inventor.

SOUND: PLAYING WITH WATER BALLOONS

JR: In 2006, he left his corporate job as a process engineer to invent full time. He and his wife, Alison, lived in Texas and had six kids back then. Today, they have eight. A houseful of kids gave Malone all sorts of ideas for new toys. He invented Shapelets: bracelets kids could form into any shape. A scrapbooking tool for photos. He also had a great idea for another invention. One he couldn’t quite figure out.

JOSH MALONE: One that was just pestering me year after year.

JR: How to quickly fill and tie water balloons.

SOUND: FILLING WATER BALLOONS

MARY REICHARD, HOST: Water balloons first became popular in 1950. The method: fill up a single balloon with water ... tie off the balloon … repeat. One-by-one. Final result: about 12 water balloons. I mean, you can’t have a legit water balloon fight with a mere dozen balloons.

JR: Exactly. You need hundreds! Malone spent hours in his backyard with 500-pack packages of balloons. Fill. Tie off. Fill. Tie off. By the time he had a tub ready for each team, his kids had long bailed.

MALONE: I hate inefficiency and tedium.

MR: In the decades since the first water balloon, nobody got a patent on a solution to the problem.

MALONE: I’m going to find a better way to do it.

SOUND: EARLY PROTOTYPE 

JR: How about a contraption made out of PVC pipes with a pedal to control water flow? Too big and clunky.

MR: And it didn’t seal the neck of the balloon. That problem stumped him. Twist the end of the balloon, like segmenting a sausage? Nope.

MALONE: And another solution was I was putting all sorts of objects inside the balloon to try to plug the neck in lieu of tying a knot.

MR: Mini-marshmallows, or something that wouldn’t hurt when the water balloon hit someone. Not quite right either.

JR: Seven years in, Malone had eaten through his savings. The kids had no college funds. They needed orthodontics work. And his wife, Alison, contracted a rare virus that left her 90 percent paralyzed. She eventually recovered, but didn’t know her outcome at the time. Here’s Alison:

ALISON MALONE: So it was very dramatic and very difficult for everyone else. It was really hard. So we really were at the end of the line. It was really like, okay, time’s up. We gotta go.

MR: But Josh Malone had one last idea. It would require his undivided attention for three full weeks. Alison went along with that.

JR: He wedged a small tube in the neck of each balloon. Connected the opposite end of the tube to a cap that joined to a garden hose. When the balloon filled with water, the tube slid out, and a small O-ring cinched the neck of the balloon.

MALONE: It worked almost perfectly the first time.

MR: The final product could fill up and seal off 100 water balloons in one minute. His invention looked like a bunch of grapes. So he used green- and purple-colored balloons and named his product Bunch O Balloons.

JR: He immediately applied for a patent. And got one. Meaning, he had the exclusive legal right to make and sell his product. In 2014, his family launched a Kickstarter campaign.

MALONE: And so we all sit down and we pray. And we were praying for $10,000 worth of sales, which would have been zero profit.

JR: $8,000 in sales. Then ten. Then forty! Local news stations picked up the story. Buzzfeed wrote about it. Shark Tank called. The Today Show aired a water balloon fight in Times Square with Carson Daly. Just when Malone’s invention approached sales of one million dollars—

SOUND: BALLOON POP

MALONE: We go to my grandma’s for Thanksgiving. And a friend texts me and she says, I saw a commercial for your invention, but it had a different name. And I’m like, Oh, no. It must’ve been something like ours, but it wasn’t ours because that’s completely different. She goes, No, it looked exactly like yours. … So we looked into it … and it was exactly ours, but blue.

MR: A knockoff company.

MALONE: So I was still thinking, we’ll just tell them, this is patented. You cannot do that.

MR: Steal an inventor’s product. Out litigate the inventor with aggressive lawyers. Oh, yes. You can.

JR: The Malones assumed any patent challenge would take place in the federal court system before a jury. But not all of it did. A panel of three judges weighed in and invalidated his patent. Those judges aren’t federal court judges. They are administrative patent judges, part of a federal agency.

MR: Those judges review whether a patent that has already been issued ought to have been issued to start with!

JR: The same thing happened in the case we’re covering today: U.S. v. Arthrex. Malone filed a friend of the court brief in support of Arthrex.

MR: A case that is no child’s play. Arthrex invented a medical device. And got a patent for it. Patent judges then invalidated the patent. And the question before the court: Are these administrative patent judges unconstitutionally appointed?

THEME

I Clarence Thomas...I Sonya Sotomayor...I Neil M Gorsuch...I John G Roberts...I Elaina Kagan...I Samuel Alito, Jr….I Steven Breyer...I Amy Coney Barrett...I Brett A. Kavanaugh do solemnly swear, do solemnly swear, do solemnly swear, that I will administer justice, without respect to persons, that I will support and defend the constitution of the United States, so help me God…[APPLAUSE]

JR: Welcome to Legal Docket, I’m Jenny Rough.

MR: And I’m Mary Reichard. This podcast is from the team that brings you The World and Everything in It.

The honorable Chief Justice and the associate justices of the Supreme Court of the United States. Oyez! Oyez! Oyez!

JR: Come with us inside the world of the Supreme Court as we look more deeply into current disputes and how they make a difference to your life.

All persons having business before the honorable Supreme Court...

JR: Today, a case of the America Invents Act’s Patent Trial and Appeal Board’s body of Administrative Patent Judges who hear Inter Partes Reviews within the United States Patent and Trademark Office.

MR: In other words, a case of the A-I-A’s P-TAB of A-P-Js hearing I-P-Rs within the U-S-P-T-O. Don’t worry, we’ll explain all that!

God save the United States and this honorable court.

UNDERWRITER: Support for the Legal Docket podcast comes from listeners like you. Additional support comes from Samaritan Ministries, a Biblical solution to health care, connecting Christians across the nation who care for one another spiritually and financially when a medical need arises. More at SamaritanMinistries.org/podcast.

JR: On May 11, 2021, the United States issued patent number 11 million.

MR: Patent number 1 was issued to a senator in 1836. So 185 years ago. Before then, patents weren’t numbered. Since then , Samuel Morse secured a patent for the telegraph, Thomas Edison for an electric lamp, two brothers for what they called a “Flying-machine”—

JR: Now known as an airplane. And then the year 1932. Otto Rohwedder invented a machine that slices “an entire loaf of bread at a single operation.” Patent number 1,867,377. So over the course of about 100 years, nearly 2 million patents were issued. In recent decades, those numbers have accelerated like crazy. About 2 million patents were issued in the last six years.

TORCZON: One of the things people need to understand is that the patent office has been such a roaring success that about 400,000 patents issue every year.

JR: Richard Torczon is a former Administrative Patent Judge.

TORCZON: Some of those patents are wildly successful. As you might imagine, a lot of them aren’t.

MR: Yeah, some innovations aren’t the greatest thing since sliced bread. Torczon’s reviewed patents for 18 years now. And has this observation:

TORCZON: Medical device manufacturers are pretty cut-throat. They are very fierce competitors.

MR: As we said earlier, the patent in today’s consolidated case involves a medical device. Arthrex develops tools for orthopedic surgery. It secured a patent for a tool that reattaches soft tissue to bone without the need to tie a knot.

JR: How exactly did Arthrex, or how does any inventor get a patent? Daniel Coughlin is a patent attorney in Kansas. He quickly walks us through the process.

COUGHLIN: If you invent something, in order to get a patent you’d have to file a patent application with the U.S. Patent and Trademark Office.

MR: Not as easy as it sounds.

COUGHLIN: It’s a very detailed, very difficult document to prepare. First, you have to identify what your invention is which is a difficult process because you’re using words to describe kind of the generic solution to a problem that you’ve identified, and then you have to write that and draw it in a way that would let somebody who knows what they’re doing build or practice your device.

MR: The patent office’s job is to be sure the inventor meets three criteria:

COUGHLIN: It has to be new and useful and not obvious.

JR: New. Useful. Not obvious. So if I invented a serrated knife that slices bread, no way I’d get a patent today. Right?

MR: Um, not so clear-cut!

COUGHLIN: Let’s say you developed a new pattern for the serrations of the bread knife, so those little edges at the face, the cutting face of the knife. If you came up with a new pattern that no one had ever come up with before then you could apply for a utility patent for that.

JR: New pattern. New.

COUGHLIN: A bread knife is pretty clear, you’re going to cut bread with it so it’s useful.

JR: Two of the three criteria. But Otto Rohwedder. He already invented the bread slicer in 1932. So it’s obvious. Right?

MR: Mmm, maybe wrong.

COUGHLIN: If the knife works so much better, and it doesn’t get dull as fast as the old knife and no one had ever talked about increasing the angle of the serration, and that would result in a knife that stayed sharper longer, then there would be an argument that even that small change would be patently not obvious.

JR: Fair enough. But a side note here. I asked Coughlin about the tension between inventing something new and the truth that there is nothing new under the sun.

COUGHLIN: God has made us creative. He has given us minds. He’s given us problems, difficulties. And he’s given us the capacity to overcome those. And honestly, it’s a great question because that’s one thing we struggle with at the patent office. The question of: Is it obvious, right? Because at a base level every invention is combining something that’s existed before with something else that’s existed before. And so at one level everything is obvious, like if you knew all the properties and all the ways that all the laws of physics make them interact, well everything in that respect would be obvious, but we don’t.

MR: Okay, so in our case today, remember: Arthrex went through that process. It got a patent for its knotless suture device. Again, the patent means Arthrex had the exclusive legal right to make and sell its product and do so for a period of time...usually 20 years.

JR: In 2015, Arthrex sued another medical device manufacturer for patent infringement—and won. A jury decided in favor of Arthrex. But the loser, Smith & Nephew, didn’t file a direct appeal.

MR: Instead, it sought a completely different way to invalidate the patent of Arthrex. It asked judges who sit on the Patent Trial and Appeal Board to re-examine the validity of Arthrex’s patent. P-TAB, for short.

JR: Reconsider the patent that the Patent Office already granted. Arguing it never should have been issued in the first place! That happens through a process called I-P-R, inter partes review: Latin for “between parties.” James Stern, a patent law professor at William & Mary Law School, explains.

STERN: These IPRs can be initiated by anybody who has a beef with the patent. And so it’s a way of going back to this administrative agency and saying take a second look at this patent. We don’t think that it is valid. You should yank it back.

MR: The P-TAB, the Patent Trial and Appeal Board, falls under the authority of the executive branch. That means the president appoints the director of the P-TAB. And just to confuse things? The Administrative Patent Judges are appointed by the Secretary of Commerce.

JR: There’s more than 200 of these judges. But that second look is usually done in panels of three. The patent office has long had a review process of one form or another. But this approach is relatively new. Only 10 years old.

JUSTICE BRETT KAVANAUGH: First, this structure is a real break from tradition. These are multimillion, sometimes billion-dollar decisions being made not by someone who's accountable in the usual way that the Appointments Clause demands.

JR: That’s Justice Brett Kavanaugh at oral arguments in the Arthrex case. When he says this structure is a real break from tradition, he means the way the administrative patent judges are appointed and the powers Congress has given them. Now, not every patent ends up challenged or second-guessed. But plenty do. Especially if, as Kavanaugh said, millions or billions of dollars are at stake. That tends to be the case if the invention is the greatest thing since sliced bread!

MR: Like the Malone family at the beginning of this episode, with Bunch O Balloons. Or a helpful medical device. Jenny, I think a primer is in order here, on how our patent system came to be in the first place—and how it ended up here. To help us with that, here’s Josh Malone again. He takes us back to a period of time long before the P-TAB existed. To the U.S. Constitution.

MALONE: The word “right” is used once in the Constitution.

MR: Meaning, the original Constitution. Before the amendments, like the Bill of Rights. Article 1, Section 8, clause 8. The Congress shall have the power to promote—

MALONE: o promote the progress of science and useful arts by securing to inventors the exclusive right to their discoveries.

MR: Securing the exclusive right of inventors.

JR: Here’s Malone’s wife, Alison:

ALISON MALONE: It’s such a fair bargain. Like, I will share my idea with the world if I get the right to live on it, whatever it’s worth to you guys. So it’s not even like a forced issue. And it’s a limited amount of time. It has gotten us all the technology we have in the world—

JOSH MALONE: Microsoft started in a garage. Apple started in a garage. Google started in a garage. They were innovative. 

ALISON MALONE: I mean all of this came because of the U.S. patent system. So man is created in God’s image, who is a creator. Anyone can create something. And with the US patent system, they can do that and then own it and live on it so they have the incentive to share it with everyone else and benefit the world.

JR: America’s founders purposefully created a patent system that was patently different from England’s. In England’s system, you had to be wealthy and friends with the king.

MALONE: You could go to the king and you could get a patent on a colony. You could get a patent on a port. A patent on an industry. And it was just this favoritism. America said, no. We’re going to do it completely differently. We’re going to have a system where anyone—it’s going to be a merit based system where ordinary people can come up with something new and own the right to it for a limited time.

MR: America’s approach to innovation helped our vulnerable, fledgling colony become a world superpower.

MALONE: Largely built on our technological advancement by ordinary people, not PhDs and think tanks. This was farmers, this was housewives, this was teachers. It was incredible.

MR: Three years after the Constitution took effect, Congress passed the first Patent Act.

MALONE: And so in that Act, Congress offered to any he, she, or they who invents or discovers something new and useful. So way before gender pronouns were trendy. In 1790, our founders were offering property rights to women and not much longer after that to African-Americans. And so it was, I mean, you’re talking about opportunity, equal opportunity and the ability to climb the social ladder and succeed. It was brilliant.

MR: Under the Patent Act of 1790, three presidential cabinet members decided whether to grant a patent.

JR: But turns out, that took a lot of work. So Congress passed more laws. Here again is Richard Torczon, the former administrative patent law judge.

TORCZON: The first what we’d now call administrative patent judges were appointed at the beginning of the Lincoln administration. So the position in some form or another has been around for awhile and in fact Lincoln actually was appointing them, so they were presidential appointees at first.

JR: So they weren’t called administrative patent judges at the time. But a similar role existed. And the president did the hiring with Senate consent.

MR: The reason that’s important: Article II of the U.S. Constitution. That set up the executive branch. Here’s patent law professor James Stern again. He says Article II doesn’t say a lot, but:

STERN: One of the relatively few rules that it does set out is the manner in which certain people are appointed to their offices within the executive branch.

JR: A rule known as the Appointments clause. Officers of the United States fall into two groups. First, principal officers:

STERN: If they are principal officers, they have to be nominated by the president and confirmed by the Senate.

JR: Federal court judges, for example. The second group: Inferior officers.

STERN: For inferior officers, it’s okay, says the Constitution, to set up their appointments so it’s unilaterally by the president without Senate confirmation. Or it can be, the power can be granted to any of these so-called heads of department. So in this case, the question is whether these officials who sit as APJs, Administrative Patent Judges, and hear these challenges, whether they constitute inferior officers, or whether they constitute what are often referred to as principal officers, that is to say officers of the United States who are not inferior officers. Because if they are principal officers, they have to be nominated by the president and confirmed by the Senate.

MR: So inferior officers can be appointed by the president without Senate confirmation, or can be appointed by a department head, among others. Back in the 1800s when the Patent Office was set up, the officers who determined whether to grant a patent were principal officers.

JR: But as we mentioned earlier, the patent system has grown wildly over time. And more reforms. Including a big change in 2011 called The America Invents Act. Here’s President Barack Obama at its signing:

PRESIDENT BARACK OBAMA: When Thomas Edison filed his patent for the phonograph, his application was approved in just seven weeks. And these days that process is taking an average of three years. Over the last decade, patent applications have nearly tripled. And because the Patent Office doesn’t have the resources to deal with all of them, right now there are about 700,000 applications that haven’t even been opened yet. And somewhere in that stack of applications could be the next technological breakthrough, the next miracle drug. So that’s why I asked Congress to send me a bill that reforms the outdated patent process. A bill that cuts away the red tape, that slows down our inventors and entrepreneurs. And today I’m happy to have the opportunity to finally sign that bill. [APPLAUSE]

JR: The 10-year anniversary of that bill passed in September. And with it protests. By inventors!

VIDEO CLIP: Hi, friends. We’re coming up the 10-year anniversary of the worst event in history for American inventors. This is the bill that created the Patent Trial and Appeal Board, the death squad for patents. We call it the P-TAB.

MR: Law professor Stern walks us through one aspect of the America Invents Act.

STERN: One of the things it did, by far its most striking reforms was to create new mechanisms to challenge patents that have already been issued by the Patent Office before this quasi-adjudicatory body called the Patent Trial and Appeal Board, the P-TAB as it’s known in the trade.

MR: One reason for the approach: To keep filing fees reasonable for everyone.

JR: Yes, Daniel Coughlin the patent attorney who explained the process for getting a patent on a bread knife? He said, if I applied for that patent, I’d have to pay patent filing fees, and pay for drawings, and pay a patent lawyer to make the legal argument that my knife is new and useful and not obvious...

COUGHLIN: It’s not an inexpensive process. You’re usually talking $10,000, $20,000. I mean, that’s at the smaller, lower end.

MR: On the other hand, the America Invents Act makes it easier for competitors to challenge a patent. Especially competitors with lots of time and money.

COUGHLIN: The challenger can invest a lot of resources that the patent office just can’t invest on every patent. They can invest $10 dollars of time to try and undermine or try and point out the defects of your patent application. Where the patent office just doesn’t have the resources to hit all of those details. And they can make their own arguments and use their own resources to do legal research and define prior art that may not have been identified by the patent office and say, For all these reasons, this patent should not exist.

JR: But inventors like Josh Malone, the Bunch O Balloons guy, say more effort should be made to get the patent issuance right the first time around! You’ll hear that he’s in a park launching water balloons. Hence, the cicada chorus in the background.

COUGHLIN: Imagine if the PGA tour granted every golfer a Mulligan on every hole. What would that do to the quality of the game and the fairness? I mean, it would just be so disruptive. And here we have an agency who's supposed to be promoting innovation. They need to focus on that. And maybe they, if they are making mistakes, they need to focus on stopping it. You can't give them a do-over because then they don't do their job. There's less incentive to do their job right the first time. Yeah. It's nutty.

MR: Nutty or not, that review process is what happened here. So, to recap: Arthrex got its patent. It sued Smith & Nephew in district court for infringement. And won. Then instead of appealing, Smith & Nephew sought an inter partes review proceeding.

JR: And when a panel of administrative patent judges re-examined Arthrex’s patent—gave it that second, closer look—it reversed its original decision to grant the patent. Said it never should have issued a patent in the first place. 

MR: That’s when Arthrex brought its case before the Federal Circuit Court of Appeals and argued that the I-P-R process is unconstitutional.

JR: Right. And because Arthrex went to federal court raising a constitutional challenge to the America Invents Act... the United States had to step in to defend the law. So the United States became a defendant.

MR: Okay, that’s the history. The lawsuit here asks whether the P-TAB’s review process is properly set up under Article II. The executive branch. Here’s the gist of it, as explained by law professor Stern:

STERN: There are special rules applicable to executive branch officers, and those rules, under the Constitution, weren’t followed here. That’s was the challenge.

MR: Administrative patent judges are inferior officers. Meaning, they aren’t nominated by the president with the advice and consent of the Senate. As we mentioned earlier, they’re appointed by the Secretary of Commerce. Arthrex points out that when administrative patent judges cancel a patent, that decision stands. The director of the P-TAB, who is a principal officer, cannot review it. The director doesn’t have that power.

JR: In other words, it gives the judges the power without any supervision. And because they make the final decision for the executive branch, Arthrex argues they are principal officers that must be nominated by the President and confirmed by the Senate. That didn’t happen here, so the judges are unlawfully appointed. That’s the argument Arthrex makes. Here’s Jeffry Lamkin, lawyer for Arthrex, at oral arguments, conducted by phone last March.

LAMKIN: Administrative patent judges do one thing: decide cases. Their decisions are the executive's final word resolving billion-dollar disputes affecting the innovation landscape. They can even overturn earlier decisions by their own agency head to grant a patent. No superior in the executive has authority to review their decisions. … [43:41] In 200 years, this Court has never upheld such a scheme.

Chief Justice John Roberts seemed to agree. He asked the other side about that right off the bat. Malcolm Stewart, arguing for the government, said true, the director cannot review the administrative patent judges’ decision. But the director can do lots of other important things:

MALCOLM STEWART: The director can promulgate binding guidance concerning substantive patent law. He can designate particular board opinions as precedential, thus making those opinions binding on future panels. He can also decide whether any particular review will be instituted and which judges will sit on the panel. And he can de-institute a review even after it has been commenced.

CHIEF JUSTICE JOHN ROBERTS: Mr. Stewart, that was a long list of things that the director can do, but, of course, the one thing that he can't do is just change the decision of the APJ. And so it is sort of directly opposite to what the Appointments Clause was designed to do, which is transparency. And make it clear who's responsible. Here, you know, the director can ​​pressure the APJ, but, at the end of the day, he can say: Well, that's not my fault. That's what he wanted.

JR: Justice Neil Gorsuch followed up on that.

JUSTICE NEIL GORSUCH: I'm struggling to understand how that interpretation of our Constitution squares with your argument that not even the President of the United States, either himself or through his subordinates, can reverse a decision of APJs. Where is the chain of dependence? There's no chain of dependence running to the President with respect to the supervision of a particular decision, is there?

MR: Stewart, for the government, argued the President can remove the Director. Fire him. Gorsuch said, but that’s not the same thing.

GORSUCH: That's removal, and my question was focused on supervision. If the President disagrees with the decision or one of his designees down the chain of dependence disagrees with the decision, there's no remedy that the President has, correct?

MR: Next up to the lectern to argue, Smith & Nephew’s lawyer, Mark Perry. Remember, Smith & Nephew is the company who asked the P-TAB to take a second look at Arthrex’ patent and invalidate it.

JR: Justice Brett Kavanaugh said he worried about where this could all lead. If patent judges can do it, why not others? When he says A-L-J, he means administrative law judges, all of them, not only the patent ones.

KAVANAUGH: What I'm worried about is this gives a model for Congress to eliminate agency review of ALJ decisions and kind of fragment and take away from agency control going forward, because this -- however this came about, this would be a model going forward, and that would allow Congress to give extraordinary power to inferior officers, which is not how our government is ordinarily structured.

JR: Justice Amy Coney Barrett said, let’s assume this setup is a violation of the Appointments clause.

JUSTICE AMY CONEY BARRETT: So I want you to assume for the purposes of my question that you lose on the Appointments Clause issue, and I want to ask you about remedy.

MR: Remedy means fair fix. And Justice Barrett pointed out, there’s more than one to choose from.

So we could, if we decided that it was unconstitutional, perhaps make all of the APJs subject to—say they're principal officers, and so they have to be subject to presidential appointment, senatorial confirmation.

MR:  Or...

BARRETT: We could say, listen, we're going to strike the provision in the statute that says only the P-TAB may grant rehearings so that the director has that authority.

MR: Meaning, give the director the power to reverse the administrative patent judges’ decision. In response, here’s Perry, attorney for Smith & Nephew:

MARK PERRY: Justice Barrett, I don’t mean to be flip, but if you tell me how we lose, we can tell you what the remedy is. So, for example, if the real problem here is the lack of agency reviewability, then the most direct line to a solution would be to sever the provision requiring board rehearing so that the director could unilaterally review.

JR: He went on to point out, that’s not what the opposing party, Arthrex wants! He noted Arthrex was after a much bigger remedy.

PERRY: And it's certainly not where Arthrex has identified it, which is to take down this whole system. You know, they don't actually want presidential confirmation. They don't actually want director review. What they want is for the Court to blow up the whole thing because of a structural problem that, again, not to fight the hypothetical, we think doesn't exist.

JR: In the end, the Court answered two questions. First, yes, there is an Appointments clause problem. Five justices agreed on that. Four dissented. The opinion didn’t specify whether the administrative patent judges are principal officers, thus improperly appointed. Or, whether they are inferior officers given improper power. The Court said, doesn’t matter. Both formulations amount to a Constitutional violation.

MR: Law professor Stern sums the opinion up this way:

STERN: We have a mismatch between the way they are appointed, which is consistent with inferior officers, and the tasks that they carry out, and the way in which that task is carried out, which is consistent with a principal officer.

MR: So the majority agrees that’s the problem. Now what to do about that? That’s the second question the court answered. It held that the best fix is to give the director the power to review the decision. Seven justices agreed on that point.

STERN: What the court did here was to change the nature of their function so that it doesn’t become automatically final and unreviewable by any higher authority. So they can remain as inferior officers, appointed in the way that they are without Senate confirmation, but their work can’t be made final on it’s own. It has to be subject to review by a principal officer.

JR: Overall, Stern says it’s a significant case, both from a constitutional administrative law perspective and for patent law.

STERN: Anytime the court starts interpreting the appointments clause, that’s a pretty big deal from the standpoint of how the executive branch works.

MR: And then in the patent law area, Stern says this isn’t the first, or last, challenge to the America Invents Act. Challengers are coming at it from all angles.

JR: Justice Clarence Thomas filed a dissent in this case. Torczon, the former patent judge, summarizes it:

TORCZON: What Thomas says is wait a minute. If you think about it not only does the Director have a lot of control over these people hiring them and paying them and deciding which officers they get and whether they get a case to work on at all, and all sorts of control over these things. We have never said that that political appointee has to have control over everything. We’re jumping way past what the Appointments Clause is worried about. And if you think about it as a practical matter, it would be hard to have that much control, right?

MR: Thomas argues we’re mis-analyzing the appointments clause. We need to revisit how we look at inferior officers. So that was the Arthrex case.

JR: Back to Josh Malone, the Bunch O Balloons inventor. He did get his patent reinstated after the P-TAB invalidated it. But it cost him millions to fight the infringers—and the current patent system.

SOUND: MALONE'S DAUGHTER PLAYING THE HARP

JR: At his home near Washington, D.C., one of his daughters plays the harp as the family gathers for lunch after church. That afternoon, they’ll head to a park to play with, what else, water balloons.

SOUND: MALONES PLAYING WATER BALLOON BASEBALL

JR: He and his family moved to D.C. so he could focus his efforts on patent law reform. He says so many inventors are blindsided. They’ve never even heard of the inter partes review process to invalidate patents until they receive notice in the mail. Today, he volunteers his time to help them. And it’s his Christian faith that propels him to teach others what he had to learn the hard way.

MR: There is nothing new under the sun. From the book of Ecclesiastes.

MALONE: God knows all the answers. He made all the pieces. And so it really is just a matter of figuring out what He already knows. So it’s not new to Him. Like Bunch O Balloons didn’t surprise God. And that’s really what inventors do. We don’t make things out of, what, ex nihilo. We find things and put them together. So there's nothing new under the sun. It is a bit of a paradox for an inventor.

JR: Legal Docket is produced by the creative team at WORLD Radio. I’m Jenny Rough.

MR: And I’m Mary Reichard. We’re the hosts each week.

JR: Our script editors are Nick Eicher and Paul Butler, who is also our producer. Technical engineer is Rich Roszel. Thanks go to Daniel Coughlin, Josh and Alison Malone, James Stern, and Richard Torczon. Source material in this episode included oral arguments from SupremeCourt.gov, NBC TV, USInventor.org, and the Whitehouse Archives.

MR: This is our final episode of Season 2. We thank you for leaving ratings and reviews which help others find us! And we’d love to hear what you liked, and what you didn’t. You can send us feedback at legaldocket@wng.org. God willing, we’ll be back next summer for Season 3 of Legal Docket Podcast.

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