Amici and Practitioners Attempt to Read the Arthrex Tea Leaves

Director William H. Milliken was quoted in the article “Amici and Practitioners Attempt to Read the Arthrex Tea Leaves,” published by IPWatchdog. Will provided the following commentary on the oral arguments held before the Supreme Court in United States v. Arthrex, Inc.:

“One of the primary issues the Justices appeared to be grappling with is how to articulate a legal test to distinguish between principal and inferior officers that (i) is concrete enough to be administrable but also (ii) is flexible enough to account for the wide variety of institutional structures that may be desirable in our government. Arthrex’s test—an adjudicative officer is a principal officer if no one else in the executive branch can directly review his or her decisions—is concrete, but less flexible. The test proposed by the United States and Smith & Nephew—an officer is an inferior officer if, considering the totality of the circumstances, the officer’s work is supervised ‘at some level’ by other officers—is flexible, but less concrete. Many of this morning’s questions illuminated the tradeoffs inherent in those two approaches.”