The Judicial Oath’s Impact on Determining Who is a Principal Officer

In the previous post, I covered the oral argument from Arthrex v. Smith & Nephew. One of the issues that the Federal Circuit might have to decide in that case is whether PTAB judges are “inferior” or “principal” officers. There is a mosaic of factors that go into determining whether one is an “inferior” or “principal” officer. One factor may rest upon whether PTAB judges are directed and supervised by a principal officer, such as the Director.

I wonder how the judicial oath/affirmation factors into the determination of whether a PTAB judge is directed and supervised by a principal officer? I believe the government requires PTAB judges to take such a judicial oath. My impression is that the language of the PTAB judicial oath/affirmation is similar to the language reflected below for US district and appellate court judges:

Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: “I, ___ ___, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God.”

(June 25, 1948, ch. 646, 62 Stat. 907Pub. L. 101–650, title IV, § 404, Dec. 1, 1990, 104 Stat. 5124.)

If the PTO requires its judges, under oath, to faithfully and impartially discharge their duties under the Constitution and laws of the United States, how could it expect the judges to subordinate their own interpretation of the law to the viewpoint of the Director?

It will be interesting to see how the Federal Circuit treats this factor.


(Updated on 10/22/20 to change “superior” to “principal” throughout.)

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