Case: 18-1831   Document: 97     Page: 1    Filed: 01/31/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

         POLARIS INNOVATIONS LIMITED,
                    Appellant

                            v.

     KINGSTON TECHNOLOGY COMPANY, INC.,
                  Appellee

                   UNITED STATES,
                       Intervenor
                 ______________________

                       2018-1831
                 ______________________

     Appeal from the United States Patent and Trademark
 Office, Patent Trial and Appeal Board in No. IPR2017-
 00116.
                  ______________________

                Decided: January 31, 2020
                 ______________________

      MATTHEW D. POWERS, Tensegrity Law Group LLP,
 Redwood Shores, CA, argued for appellant. Also repre-
 sented by JENNIFER ROBINSON; AZRA HADZIMEHMEDOVIC,
 AARON MATTHEW NATHAN, SAMANTHA A. JAMESON,
 McLean, VA; NATHAN NOBU LOWENSTEIN, KENNETH J.
 WEATHERWAX, Lowenstein & Weatherwax LLP, Los Ange-
 les, CA.
Case: 18-1831       Document: 97     Page: 2   Filed: 01/31/2020




 2      POLARIS INNOVATIONS LIMITED v. KINGSTON TECHNOLOGY
                                                    CO. INC.




    DAVID M. HOFFMAN, Fish & Richardson PC, Austin, TX,
 argued for appellee. Also represented by MICHAEL JOHN
 BALLANCO, Washington, DC; NITIKA GUPTA FIORELLA, Wil-
 mington, DE.

    MELISSA N. PATTERSON, Appellate Staff, Civil Division,
 United States Department of Justice, Washington, DC, ar-
 gued for intervenor. Also represented by COURTNEY DIXON,
 DENNIS FAN, SCOTT R. MCINTOSH, JOSEPH H. HUNT;
 THOMAS W. KRAUSE, JOSEPH MATAL, FARHEENA YASMEEN
 RASHEED, Office of the Solicitor, United States Patent and
 Trademark Office, Alexandria, VA.
                  ______________________

     Before REYNA, WALLACH, and HUGHES, Circuit Judges.
           Opinion for the court filed PER CURIAM.
     Concurring opinion filed by Circuit Judge HUGHES, in
             which Circuit Judge WALLACH joins.
 PER CURIAM.
      In its opening brief, Polaris Innovations Limited ar-
 gues that the final written decision at issue in this appeal
 exceeds the scope of the Patent Trial and Appeal Board’s
 authority and violates the Constitution’s Appointments
 Clause. See Appellant’s Br. 53 (citing U.S. Const. art. II,
 § 2, cl. 2). This court recently decided this issue in Arthrex,
 Inc. v. Smith & Nephew, Inc., 

(Fed. Cir.
 2019). Accordingly, the Board’s decision in No. IPR2017-
 00116 is vacated, and the case is remanded to the Board for
 proceedings consistent with this court’s decision in Arthrex.
                  VACATED AND REMANDED
                             COSTS
      No costs.
Case: 18-1831    Document: 97     Page: 3   Filed: 01/31/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________


          POLARIS INNOVATIONS LIMITED,
                     Appellant

                             v.

     KINGSTON TECHNOLOGY COMPANY, INC.,
                  Appellee

                    UNITED STATES,
                        Intervenor
                  ______________________

                        2018-1831
                  ______________________

     Appeal from the United States Patent and Trademark
 Office, Patent Trial and Appeal Board in No. IPR2017-
 00116.
                  ______________________

 HUGHES, Circuit Judge, concurring, in which WALLACH,
 Circuit Judge, joins.
     I concur because we are bound by the prior panel
 decision in Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d
Case: 18-1831      Document: 97    Page: 4    Filed: 01/31/2020




 2       POLARIS INNOVATIONS LIMITED v. KINGSTON TECHNOLOGY
                                                     CO. INC.


 1320 (Fed. Cir. 2019). 1 However, I write separately to note
 that I disagree with the merits and question the remedy of
 the Arthrex panel decision. I believe that viewed in light of
 the Director’s significant control over the activities of the
 Patent Trial and Appeal Board and Administrative Patent
 Judges, APJs are inferior officers already properly
 appointed by the Secretary of Commerce.
      But if APJs are properly considered principal officers,
 I have grave doubts about the remedy Arthrex applied to
 fix their unconstitutional appointment. In the face of an
 unconstitutional statute, our role is to determine whether
 severance of the unconstitutional portion would be
 consistent with Congress’s intent. Given the federal
 employment protections APJs and their predecessors have
 enjoyed for more than three decades, I find no legislative
 intent to divest APJs of their Title 5 removal protections to
 cure any alleged constitutional defect. Because the bar to
 find non-severability is so high, though, I reluctantly agree
 with Arthrex’s remedy.
                               I
    None of the parties here or in Arthrex dispute that
 APJs are officers who exercise “significant authority pur-
 suant to the laws of the United States.” Buckley v. Valeo,



     1    The parties have raised the same arguments on the
 merits of the Appointments Clause issue in both Polaris
 cases before this panel, Nos. 2018-1768 and 2018-1831.
 However, the government contends that Polaris waived its
 Appointments Clause challenge in No. 2018-1768 because
 it failed to make the argument before the Board in the first
 instance. I need not address the waiver issue because this
 concurrence addresses only the merits of the Appointments
 Clause argument. And I address this concurrence to No.
 2018-1831 because the parties agree the issue was pre-
 served there.
Case: 18-1831     Document: 97      Page: 5    Filed: 01/31/2020




 POLARIS INNOVATIONS LIMITED v. KINGSTON TECHNOLOGY           3
 CO. INC.


 

, 126 (1976) (per curiam). But “significant au-
 thority” marks the line between an officer and an em-
 ployee, not a principal and an inferior officer. Despite
 being presented with the opportunity to do so, the Supreme
 Court has declined to “set forth an exclusive criterion for
 distinguishing between principal and inferior officers for
 Appointments Clause purposes.” Edmond v. United States,
 

, 661 (1997).
     Instead, the pertinent cases make clear that the hall-
 mark of an inferior officer is whether a presidentially-nom-
 inated and senate-confirmed principal officer “direct[s] and
 supervise[s] [her work] at some level.” 

Edmond
 does not lay out a more exacting test than this, and we
 should not endeavor to create one in its stead. The cases
 employ an extremely context-specific inquiry, which ac-
 counts for the unique systems of direction and supervision
 in each case. See infra Section I. Finally, Edmond also
 makes clear that the Appointments Clause seeks to “pre-
 serve political accountability relative to important govern-
 ment 

. The current
 structure for appointing, directing and supervising, and re-
 moving APJs allows such political accountability through
 the Director’s significant, substantive supervision of APJs’
 work, and the ability to discipline and terminate APJs to
 promote the efficiency of the service.
     Arthrex, in my view, pays insufficient attention to the
 significant ways in which the Director directs and super-
 vises the work of the APJs and, instead, focuses on whether
 the Director can single-handedly review and reverse Board
 decisions, and whether APJs are removable at will. In do-
 ing so, the Arthrex panel essentially distills the Supreme
 Court’s direction and supervision test into two discrete
 questions: (1) are an officer’s decisions reviewable by a
 principal officer and (2) is the officer removable at will? Be-
 cause I believe that the Supreme Court would have an-
 nounced such a simple test if it were proper, I respectfully
 disagree with the Arthrex panel decision that APJs are
Case: 18-1831     Document: 97      Page: 6    Filed: 01/31/2020




 4     POLARIS INNOVATIONS LIMITED v. KINGSTON TECHNOLOGY
                                                   CO. INC.


 principal officers. The Director’s power to direct and su-
 pervise the Board and individual APJs, along with the fact
 that APJs are already removable under the efficiency of the
 service standard, suffices to render APJs inferior officers.
                               A
     The Director may issue binding policy guidance, insti-
 tute and reconsider institution of an inter partes review,
 select APJs to preside over an instituted inter partes re-
 view, single-handedly designate or de-designate any final
 written decision as precedential, and convene a panel of
 three or more members of his choosing to consider rehear-
 ing any Board decision. The Arthrex panel categorized
 some of these as “powers of review” and others as “powers
 of supervision,” but I view them all as significant tools of
 direction and supervision.
      As Arthrex recognized, “[t]he Director is ‘responsible for
 providing policy direction and management supervision’
 for the [United States Patent and Trademark 

(quoting 35 U.S.C. § 3(a)(2)(A)). Not only can
 the Director promulgate regulations governing inter partes
 review procedures, but he may also prospectively issue
 binding policy guidance “interpreting and applying the pa-
 tent and trademark laws.” Gov’t. Br. 21. APJs must apply
 this guidance in all subsequent inter partes review proceed-
 ings. Such guidance might encompass, for instance, exem-
 plary application of the law to specific fact patterns, such
 as those posed in pending cases. These powers provide the
 Director with control over the process and substance of
 Board decisions. Gov’t. Br. 8, 21. And though the Director
 cannot directly reverse an individual Board decision that
 neglects to follow his guidance, APJs who do so risk disci-
 pline or removal under the efficiency of the service stand-
 ard applicable under Title 5. See infra Section I C. Such
Case: 18-1831     Document: 97     Page: 7    Filed: 01/31/2020




 POLARIS INNOVATIONS LIMITED v. KINGSTON TECHNOLOGY          5
 CO. INC.


 binding guidance, and the consequences of failing to follow
 it, are powerful tools for control of an inferior officer. 2
     The Director also has unreviewable authority to insti-
 tute inter partes review. 35 U.S.C. § 314(a), (d). Cf. Free
 Enter. Fund v. Pub. Co. Accounting Oversight Bd., 

, 504 (2010) (discussing the importance of the ability to
 “start, stop, or alter individual [PCAOB] investigations,”
 even where the reviewing principal officer already had sig-
 nificant “power over [PCAOB] activities”). Though the Ar-
 threx panel did not address the Director’s ability to
 reconsider an institution decision, our precedent also holds
 that the Board 3 may reconsider and reverse its initial in-
 stitution decision. See, e.g., Medtronic, Inc. v. Robert Bosch
 Healthcare Sys., Inc., 

, 1385−86 (Fed. Cir.
 2016) (explaining that Ҥ 318(a) contemplates that a pro-
 ceeding can be ‘dismissed’ after it is instituted, and, as our
 prior cases have held, administrative agencies possess in-
 herent authority to reconsider their decisions, subject to
 certain limitations, regardless of whether they possess ex-
 plicit statutory authority to do so” (internal quotation and
 citation omitted)).
     The Director also controls which APJs will hear any
 given instituted inter partes review. 35 U.S.C. § 6(c). In


     2    To be sure, I do not mean to suggest that the Direc-
 tor’s extensive powers of supervision mean that he can dic-
 tate the outcome of a specific inter partes proceeding.
 Rather, his ability to issue guidance and designate prece-
 dential opinions provides the general type of supervision
 and control over APJs’ decision-making that renders them
 inferior, not principal, officers.
      3   The Director’s delegation of his institution power to
 the Board does not diminish its existence. 37 C.F.R.
 § 42.4(a) (stating that “[t]he Board institutes the trial on
 behalf of the Director”). See also Ethicon Endo-Surgery,
 Inc. v. Covidien LP, 

, 1033 (Fed. Cir. 2016).
Case: 18-1831     Document: 97      Page: 8    Filed: 01/31/2020




 6     POLARIS INNOVATIONS LIMITED v. KINGSTON TECHNOLOGY
                                                   CO. INC.


 my view, this power of panel designation is a quintessential
 method of directing and controlling a subordinate. Im-
 portantly, I do not believe that in stating that the power to
 remove an officer at-will from federal employment is “a
 powerful tool for control of an inferior,” Free 

(internal quotation omitted), the Supreme
 Court meant that such removal power is the only effective
 form of control in the context of the Appointments Clause.
 For example, the Judge Advocate General in Edmond could
 remove the Court of Criminal Appeal judges from judicial
 service without cause, but not necessarily federal employ-
 ment altogether. 

. See also Free
 

(relying on both at-will removal
 authority and “the [SEC’s] other oversight authority” in
 finding with “no hesitation” that the PCAOB members are
 inferior officers). That is akin to the Director’s authority to
 designate which APJs will consider a certain case. And de-
 spite acknowledging that “when a statute is silent on re-
 moval, the power of removal is presumptively incident to
 the power of appointment[,]” the Arthrex panel declined to
 opine on the Director’s ability to de-designate APJs from a
 panel under § 6(c). 

. But Edmond
 referenced the ability to remove the judges there “from
 [their] judicial assignment[s],” followed by a recognition of
 the potent power of 

. If the Direc-
 tor’s ability to control APJs plays a significant part in the
 unconstitutionality at issue, such that the remedy is to
 make APJs removable at will, the panel should have defin-
 itively addressed the Director’s de-designation authority.
 Moreover, as outlined in Section I C, infra, APJs already
 may be disciplined or removed from federal employment
 under the routine efficiency of the service standard, which
 is not incompatible with discipline or removal for failing to
 follow the Director’s binding guidance.
     And the Director may continue to provide substantial
 direction and supervision after the Board issues its final
 written decision. As Arthrex discusses, the Director may
Case: 18-1831    Document: 97      Page: 9    Filed: 01/31/2020




 POLARIS INNOVATIONS LIMITED v. KINGSTON TECHNOLOGY         7
 CO. INC.


 convene a Precedential Opinion Panel (POP), of which the
 Director is a member, to consider whether to designate a
 decision as precedential. 

. But I
 read the Standard Operating Procedures more broadly,
 such that the Director may also make a precedential desig-
 nation or de-designation decision single-handedly, 4
 thereby unilaterally establishing binding agency authority
 on important constitutional questions and other exception-
 ally important issues. Standard Operating Procedure 2, at
 3−4. Indeed, it appears that the Director has done so in at
 least sixteen cases in 2018 and 2019. See USPTO, Patent
 Trial and Appeal Board Precedential and informative deci-
 sions, available at https://www.uspto.gov/patents-applica-
 tion-process/patent-trial-and-appeal-board/precedential-
 informative-decisions (listing decisions designated as prec-
 edential in the past year, where some are labeled as “Prec-
 edential Opinion Panel decision” and others are not). The
 Director may also convene a POP of his choice, of which he
 is by default a member, to consider whether to rehear and
 reverse any opinion. Standard Operating Procedure 2, at
 4. And, the Director may “determine that a panel of more
 than three members is appropriate” and then choose those
 additional members as well. 

Arthrex panel
 recognized these powers, it dismissed them because the Di-
 rector has only one vote out of at least 

   “No decision will be designated or de-designated as
 precedential or informative without the approval of the Di-
 rector. This SOP does not limit the authority of the Director
 to designate or de-designate decisions as precedential or in-
 formative, or to convene a Precedential Opinion Panel to
 review a matter, in his or her sole discretion without regard
 to the procedures set forth herein.” Patent Trial and Ap-
 peal Board, Standard Operating Procedure 2 (Revision 10)
 at 1 (Standard Operating Procedure 2), available at
 https://www.uspto.gov/sites/default/files/documents/SOP
 2%20R10%20FINAL.pdf.
Case: 18-1831     Document: 97    Page: 10    Filed: 01/31/2020




 8       POLARIS INNOVATIONS LIMITED v. KINGSTON TECHNOLOGY
                                                     CO. INC.


 1331−32. This assessment, however, fails to recognize the
 practical influence the Director wields with the power to
 hand-pick a panel, particularly when the Director sits on
 that panel. The Director’s ability to unilaterally designate
 or de-designate a decision as precedential and to convene a
 POP of the size and composition of his choosing are there-
 fore important tools for the direction and supervision of the
 Board even after it issues a final written decision. 5




     5   The Arthrex panel’s underestimation of the Direc-
 tor’s power is particularly evident in light of this court’s
 prior en banc decision in In re Alappat, 

(Fed.
 Cir. 1994), abrogated on other grounds by In re Bilski, 

(Fed. Cir. 2008). Alappat contained strong lan-
 guage about the ability to control the composition and size
 of panels. See, e.g., 

(noting that “the Board is
 merely the highest level of the Examining Corps, and like
 all other members of the Examining Corps, the Board op-
 erates subject to the Commissioner’s overall ultimate au-
 thority and responsibility”). While the duties of the Board
 and the Director have changed since Alappat was decided,
 the authority to determine the Board’s composition for re-
 consideration of an examiner’s patentability determination
 mirrors the current authority with respect to inter partes
 review. Compare 35 U.S.C. § 6(c) (2012) (giving the Direc-
 tor authority to designate “at least 3 members of the Patent
 Trial and Appeal Board” to review “[e]ach appeal, deriva-
 tion proceeding, post-grant review, and inter partes re-
 view”), with 35 U.S.C. § 7(b) (1988) (giving the
 Commissioner power to designate “at least three members
 of the Board of Appeals and Interferences” to review “ad-
 verse decisions of examiners upon applications for pa-
 tents”). Therefore, I believe the panel should have at least
 discussed how Alappat’s view of the power to control the
 Board might impact the Appointments Clause analysis.
Case: 18-1831    Document: 97      Page: 11    Filed: 01/31/2020




 POLARIS INNOVATIONS LIMITED v. KINGSTON TECHNOLOGY          9
 CO. INC.


     Combined, all of these powers illustrate that the Direc-
 tor has constitutionally significant means of direction and
 supervision over APJs─making them inferior officers un-
 der the rule of Edmond.
                               B
     Despite the Director’s significant powers of direction
 and supervision, the Arthrex panel concluded that APJs are
 principal officers in large part because no principal officer
 may “single-handedly review, nullify or reverse” the
 Board’s decisions. 

. But Supreme
 Court precedent does not require such power. And in the
 cases in which the Court emphasized a principal officer’s
 power of review, that principal officer had less authority to
 direct and supervise an inferior officer’s work ex ante than
 the Director has here.
      In Edmond, for instance, the Court of Appeals for the
 Armed Forces, an Article I court, could review decisions of
 the Court of Criminal Appeals judges at issue. However,
 its scope of review was limited. 

 (explaining that the Court of Appeals for the Armed Forces
 may only reevaluate the facts when there is no “competent
 evidence in the record to establish each element of the of-
 fense beyond a reasonable doubt”). And while the Judge
 Advocate General “exercise[d] administrative oversight”
 and could “prescribe uniform rules of procedure,” he could
 “not attempt to influence (by threat of removal or other-
 wise) the outcome of individual proceedings.” 

 Nonetheless, the Supreme Court found that the Court of
 Criminal Appeals judges were inferior, not principal, offic-
 ers. In comparison, while the Director may not unilaterally
 decide to rehear or reverse a Board decision, he has many
 powers to direct and supervise APJs both ex ante and ex
 post, Section I 

, that no principal officer had in Ed-
 mond.
     Similarly, in Freytag v. Comm’r, 

(1991),
 the Supreme Court considered the status of special trial
Case: 18-1831      Document: 97    Page: 12    Filed: 01/31/2020




 10       POLARIS INNOVATIONS LIMITED v. KINGSTON TECHNOLOGY
                                                      CO. INC.


 judges appointed by the Tax Court, whose independent de-
 cision-making varied based on the type of case before them.
 The Court held that the special trial judges were inferior
 officers—not employees—when presiding over “declaratory
 judgment proceedings and limited-amount tax cases” be-
 cause they “render[ed] the decisions of the Tax Court” in
 those cases. 

In doing so, the Court distin-
 guished between cases in which the special trial judges
 acted as “inferior officers who exercise independent author-
 ity,” and cases in which they still had significant discretion
 but less independent authority. 

analysis
 distinguished between inferior officer and employee; no-
 where did the Court suggest that special trial judges’ “in-
 dependent authority” to decide declaratory judgment
 proceedings and limited-amount cases rendered them prin-
 cipal officers. See 

Most recently, the Court
 applied the framework of Freytag in deciding whether ad-
 ministrative law judges (ALJs) of the Securities and Ex-
 change Commission (SEC) are inferior officers or
 employees. Lucia v. S.E.C., 

, 2053 (2018).
 The Court reasoned that SEC ALJs and Freytag’s special
 trial judges are extremely similar, but SEC ALJs arguably
 wield more power because their decisions become final if
 the SEC declines review. 

But again, the
 Court found this structure still only rendered SEC ALJs
 officers, not employees. 

No mention was made
 of SEC ALJs being principal officers. 6 See 

n.3
 (explaining that the distinction between principal and in-
 ferior officers was “not at issue here”). Just as the special


      6    In fact, the Court declined “to elaborate on Buck-
 ley’s ‘significant authority’ test” marking the line between
 officer and employee, citing two parties’ briefs which ar-
 gued that the test between officer and employee, not prin-
 cipal and inferior officer, should include some measure of
 the finality of decision making. 

─52.
Case: 18-1831    Document: 97      Page: 13    Filed: 01/31/2020




 POLARIS INNOVATIONS LIMITED v. KINGSTON TECHNOLOGY         11
 CO. INC.


 trial judges in Freytag and the SEC ALJs in Lucia were
 inferior officers, so too are APJs.
      Nor does this court’s precedent require unfettered re-
 view as a marker of inferior officer status. In Masias v.
 Sec’y of Health & Human Servs., we rebuffed the argument
 that because the Court of Federal Claims does not review
 decisions of the Vaccine Program’s special masters de novo,
 the special masters are principal officers. 

,
 1293−94 (Fed. Cir. 2011). There, we recognized that the
 Court of Federal Claims may only “set aside any findings
 of fact or conclusions of law of the special master found to
 be arbitrary, capricious, an abuse of discretion, or other-
 wise not in accordance with law . . . .” 

This
 limited review means that many of the special masters’ de-
 cisions are effectively final because the Court of Federal
 Claims has no basis to set aside findings of fact or conclu-
 sions of law. We reasoned that such limited review of spe-
 cial masters’ decisions by the Court of Federal Claims
 resembled the review in Edmond, and that “the fact that
 the review is limited does not mandate that special masters
 are necessarily ‘principal officers.’” 

      Finally, the panel analogized the Arthrex issue to the
 one addressed by the D.C. Circuit in Intercollegiate Broad.
 Sys., Inc. v. Copyright Royalty Bd., 

(D.C. Cir.
 2012). See 

. But the facts of In-
 tercollegiate are significantly different than those in Ar-
 threx, or here. The Librarian of Congress—the principal
 officer who supervises the Copyright Royalty Judges
 (CRJs) at issue—was much more constrained in her ability
 to direct and supervise the CRJs than the Director. The
 governing statute grants CRJs broad discretion over rate-
 making.       See 17 U.S.C. § 802(f)(1)(A)(i) (stating that
 “[CRJs] shall have full independence in making” numerous
 copyright rate-related decisions). The Librarian “ap-
 prov[es] the CRJs’ procedural regulations, . . . issu[es] eth-
 ical rules for the CRJs, [and] . . . oversee[s] various
 logistical aspects of their duties,” such as publishing CRJs’
Case: 18-1831    Document: 97     Page: 14    Filed: 01/31/2020




 12    POLARIS INNOVATIONS LIMITED v. KINGSTON TECHNOLOGY
                                                   CO. INC.


 decisions and providing administrative resources. Intercol-
 

. In fact, it appears the only way
 the Librarian can exercise substantive control over the
 CRJs’ ratemaking decisions is indirectly through the Reg-
 ister of Copyrights, whom she, not the President, appoints.
 See 17 U.S.C. § 701(a). The Register corrects any legal er-
 rors in the CRJs’ ratemaking decisions, 17 U.S.C.
 § 802(f)(1)(D), and provides written opinions to the CRJs
 on “novel question[s] of law,” 17 U.S.C. § 802(f)(1)(B), or
 when the CRJ requests such an opinion. 17 U.S.C.
 § 802(f)(1)(A)(ii). But the CRJs may not consult with the
 Register about a question of fact.                17 U.S.C.
 § 802(f)(1)(A)(i). The Librarian therefore exerts far less
 control over CRJs than the Director can over APJs using
 all the powers of direction and supervision discussed in
 Section I 

.
      The ill-suited comparison to Intercollegiate in Arthrex
 again highlights how the unique powers of direction and
 supervision in each case should be viewed in totality, ra-
 ther than as discrete categories weighing in favor of infe-
 rior officer status or not. In particular, by breaking up the
 analysis into three discrete categories—Review, Supervi-
 sion, and Removal—the Arthrex panel overlooks how the
 powers in each category impact each other. Again, for ex-
 ample, whereas ex post the Court of Appeals for the Armed
 Forces has more power to review the Court of Criminal Ap-
 peals judges’ decisions than the Director has to review a
 Board decision, neither the JAG nor the Court of Appeals
 for the Armed Forces have the Director’s ex ante control,
 such as the power to decide whether to hear a case at all or
 to issue binding guidance on how to apply the law in a case.
 Viewed through this integrated lens, I believe APJs com-
 fortably fit with prior Supreme Court precedent that has
 never found a principal officer in a challenged position to
 date.
Case: 18-1831    Document: 97      Page: 15     Filed: 01/31/2020




 POLARIS INNOVATIONS LIMITED v. KINGSTON TECHNOLOGY          13
 CO. INC.


                               C
      Finally, to the extent that the Arthrex panel decision is
 based on the lack of review along with perceived impermis-
 sible restrictions on removal of APJs, I believe it misappre-
 hends the applicable efficiency of the service standard that
 protects APJs. The efficiency of the service standard al-
 lows discipline and removal for “misconduct [that] is likely
 to have an adverse impact on the agency’s performance of
 its functions.” See Brown v. Dep’t of the Navy, 

, 1358 (Fed. Cir. 2000). To be sure, the efficiency of
 the service standard does not allow discipline or removal of
 APJs “without cause,” as in Edmond. See 

. But neither the Supreme Court nor this court has
 required that a civil servant be removable at will to qualify
 as an inferior officer. To the contrary, the Supreme Court
 and this court have upheld for-cause removal limitations
 on inferior officers. See, e.g., Morrison v. Olson, 

, 692−93 (1988) (holding that the “good cause” re-
 striction on removal of the independent counsel, an inferior
 officer, is permissible); 

(stating
 that the Court of Federal Claims can remove special mas-
 ters for “incompetency, misconduct, or neglect of duty or for
 physical or mental disability or for other good cause
 shown”). See also Free 

(explain-
 ing that the Court previously “adopted verbatim the rea-
 soning of the Court of Claims, which had held that when
 Congress ‘ “vests the appointment of inferior officers in the
 heads of Departments[,] it may limit and restrict the power
 of removal as it deems best for the public interest’ ” (alter-
 ation in original) (quoting United States v. Perkins, 

, 485 (1886) (itself quoting Perkins v. United
 States, 

, 444 (1885)))).
     The efficiency of the service standard allows supervi-
 sors to discipline and terminate employees for arguably
 even a wider range of reasons than the standards above,
 including failure or refusal to follow the Director’s policy or
 legal guidance. Together with the significant authority the
Case: 18-1831    Document: 97       Page: 16   Filed: 01/31/2020




 14    POLARIS INNOVATIONS LIMITED v. KINGSTON TECHNOLOGY
                                                   CO. INC.


 Director wields in directing and supervising APJs’ work,
 the ability to remove an APJ on any grounds that promote
 the efficiency of the service supports finding that APJs are
 inferior officers.
                               II
     Assuming for the sake of argument that APJs are prin-
 cipal officers, a remedy is required to cure the constitu-
 tional violation arising from their present appointment
 scheme. However, I do not believe that the remedy pro-
 posed by the Arthrex panel comports with congressional in-
 tent as evidenced by the employment protections provided
 to APJs and their predecessors for over thirty years. The
 Arthrex panel makes APJs removable at will by partially
 severing 35 U.S.C. § 3(c) as it applies Title 5’s removal pro-
 tections to APJs. 

–38. I question
 whether Congress would have wanted to leave APJs with-
 out the removal protections of Title 5. But, given the high
 standard for finding non-severability, I cannot say that the
 Arthrex panel’s remedy was improper.
                               A
      Before proceeding to the traditional severance analy-
 sis, I must note several concerns about the panel’s pur-
 ported “severance.” In traditional severance cases, both
 the unconstitutional language being severed and the re-
 maining language are usually part of one statute enacted
 at the same time. In what appears to be a smaller number
 of cases, an unconstitutional amendment was severed from
 the original statute. E.g., Reitz v. Mealey, 

,
 38−39 (1941), overruled in part on other grounds by Perez
 v. Campbell, 

(1971). But here the “severance”
 is far more convoluted—to the extent that I question
 whether “severance” is even the appropriate characteriza-
 tion of the Arthrex remedy.
     A court may sever the application of a particular stat-
 ute without striking language explicitly. See, e.g., Nat’l
Case: 18-1831     Document: 97      Page: 17    Filed: 01/31/2020




 POLARIS INNOVATIONS LIMITED v. KINGSTON TECHNOLOGY           15
 CO. INC.


 Fed’n of Indep. Bus. v. Sebelius, 

, 586 (2012)
 (invalidating the application of a statute to cure a constitu-
 tional defect). But the Arthrex panel did not simply sever
 the application of 35 U.S.C. § 3(c) to APJs. It severed
 § 3(c)’s application of Title 5 protections, but only with re-
 spect to Title 5’s removal protections, and only to APJs. See
 

–38. In doing so, it severed the
 application of a separate statute, indeed, a section in a sep-
 arate title of the United States Code. 

Title
 5 employment protections afforded by 35 U.S.C. § 3(c) al-
 ready existed when Congress significantly amended other
 portions of Title 35, but made no changes to § 3(c), with the
 America Invents Act in 2011. See infra Section II C. I
 question whether it is appropriate to solve the alleged con-
 stitutional infirmity at issue in Arthrex and in this case by
 severing the application of a statute that Congress left un-
 touched in its most recent revision, the substance of which
 had applied in various forms for over 30 years. See infra
 Section II B.
                                B
     When faced with an unconstitutional statute, we must
 determine whether severing the offending portion is possi-
 ble. To do so, we must determine if the remaining statute
 “will function in a manner consistent with the intent of
 Congress.” Alaska Airlines, Inc. v. Brock, 

, 685
 (1987) (emphasis removed).
     The question of severability is a weighty one and the
 bar for finding an unconstitutional provision non-severable
 is high. We “must refrain from invalidating more of the
 statute than is necessary. Indeed, we must retain those
 portions of the Act that are (1) constitutionally valid, (2) ca-
 pable of ‘functioning independently,’ and (3) consistent
 with Congress’ basic objectives in enacting the statute.”
 United States v. Booker, 

, 258–59, (2005) (in-
 ternal citations omitted).
Case: 18-1831    Document: 97     Page: 18    Filed: 01/31/2020




 16    POLARIS INNOVATIONS LIMITED v. KINGSTON TECHNOLOGY
                                                   CO. INC.


     Because the statute as severed by Arthrex can function
 independently and is constitutionally valid, the key ques-
 tion is whether the statute as excised “remains consistent
 with Congress’ initial and basic . . . intent.” 

 Here, I question whether the Arthrex-excised statute does
 so. Congress afforded federal employment protections to
 APJs and their predecessors for over thirty years. And it
 seems unlikely to me that Congress, faced with this Ap-
 pointments Clause problem, would have chosen to strip
 APJs of their employment protections, rather than choose
 some other alternative. However, because the bar for non-
 severability is so high, and Congress can, at the end of the
 day, make another legislative choice if it disagrees with the
 outcome here, I reluctantly conclude that § 3(c) can be sev-
 ered as it applies to the removal protections for APJs.
     To be sure, I do not question the ability to sever an un-
 constitutional provision lightly. But our touchstone must
 remain the intent of Congress, and in this case, Congress
 has maintained federal employment protections for
 USPTO officers and employees, including APJs and their
 predecessors, from 1975 to today. This long-standing stat-
 utory protection leads me to believe that Congress intended
 for APJs to have removal protections, such as those incor-
 porated through Title 5 in 35 U.S.C. § 3(c), regardless of
 changes made to the Board’s duties in the AIA.
                              C
     As the Arthrex panel noted, examiners-in-chief—“the
 former title of the current APJs”—were in fact nominated
 by the President and confirmed by the Senate until 1975.
 

. See also 35 U.S.C. § 3 (1952).
 But the 1975 amendment did not simply remove Presiden-
 tial nomination and Senate confirmation; it instead pro-
 vided for the appointment of examiners-in-chief (1) by the
 Secretary of Commerce (2) “under the classified civil ser-
 vice.” An Act To Amend Title 35, United States Code, “Pa-
 tents”, and For Other Purposes, Pub. L. No. 93–601, secs.
Case: 18-1831    Document: 97      Page: 19    Filed: 01/31/2020




 POLARIS INNOVATIONS LIMITED v. KINGSTON TECHNOLOGY         17
 CO. INC.


 1–2, §§ 3, 7, 88 Stat. 1956, 1956 (1975) (codified as amended
 at 35 U.S.C. §§ 3, 7 (1976)). This amendment provided fed-
 eral employment protections to examiners-in-chief. See,
 e.g., Arnett v. Kennedy, 

, 150–51 (1974), over-
 ruled in part on other grounds by Cleveland Bd. of Educ. v.
 Loudermill, 

(1985) (explaining that the Lloyd-
 LaFollette Act’s “efficiency of the service” standard gov-
 erned the dismissal of a competitive civil service employee);
 Cole v. Young, 

, 543 (1956) (describing dismis-
 sal of federal employees as governed by “general personnel
 laws,” such as the Lloyd-LaFollette Act’s “efficiency of the
 service” standard).
      Two reasons for this change appear in the legislative
 history. First, due to the growing number of examiners-in-
 chief, Presidential nomination and Senate confirmation
 posed a “burden.” H.R. REP. NO. 93-856, at 2 (1974). In an
 early case discussing the Appointments Clause, the Su-
 preme Court said that this was exactly the reason for
 providing for appointment of inferior officers by people
 other than the President. United States v. Germaine, 

, 509–10 (1878). Second, the position of examiner-
 in-chief “requir[es] unique legal and technical qualifica-
 tions and experience.” An Act To Amend Title 35, United
 States Code, “Patents”, and For Other Purposes: Hearing
 on S. 645, H.R. 5237, S. 1253 and S.1254 Before Subcomm.
 No. 3 of the H. Comm. on the Judiciary, 92d Cong. 28−29
 (1974) (letter from William N. Letson, Acting General
 Counsel of the Dep’t of Commerce, to Emanuel Celler,
 Chairman of the H. Comm. on the Judiciary). In making
 this change, Congress implicitly recognized that APJs be-
 longed in the civil service, where expertise and nonpartisan
 decision-making are expected of all civil servants. Indeed,
 such ideas motivated the passage of the Civil Service Re-
 form Act (CSRA) only three years after Congress provided
 for the appointment of APJs through the civil service sys-
 tem. Lovshin v. Dep’t of Navy, 

, 832 (Fed. Cir.
 1985) (citing the Senate’s discussion of the public’s right to
Case: 18-1831      Document: 97     Page: 20    Filed: 01/31/2020




 18       POLARIS INNOVATIONS LIMITED v. KINGSTON TECHNOLOGY
                                                      CO. INC.


 a government that is both “efficient and effective” and “im-
 partially administered”).
     Congress then maintained these federal employment
 protections through several amendments over more than
 three decades. In 1985, Congress amended 35 U.S.C. § 7,
 creating the Board of Patent Appeals and Interferences
 (BPAI) from the existing Board of Appeals, and again pro-
 vided that the examiners-in-chief “shall be appointed to the
 competitive service.” 7 Patent Law Amendment Acts of
 1984, Pub. L. 98–622, title II, sec. 201, § 7(a), 98 Stat. 3383,
 3386 (1984) (codified as amended at 35 U.S.C. § 7 (1988)).
 Though the 1978 CSRA replaced the Lloyd-LaFollette Act
 between the 1975 and 1985 amendments to 35 U.S.C. § 7,
 the CSRA maintained the “efficiency of the service” stand-
 ard for discipline and dismissal of federal employees in the
 competitive service. 5 U.S.C. § 7513 (1978). See also Cor-
 nelius v. Nutt, 

, 669 (1985) (“The statutory
 phrase ‘such cause as will promote the efficiency of the ser-
 vice’ pre-dates the Civil Service Reform Act’s recognition of
 federal sector collective bargaining.”) (Marshall, J., dis-
 senting).
      In 1999, Congress made four changes significant here.
 First, Congress modified the statutory language governing
 the BPAI, moving the Board’s governing language from § 7
 to its current location in § 6. See Patent and Trademark
 Office Efficiency Act, Pub. L. 106–113, ch. 1, sec. 4717,
 113 Stat. 1501, 1501A-580 (1999) (codified at 35 U.S.C. § 6
 (2000)). Second, it introduced the terminology of adminis-
 trative patent judge, in place of examiners-in-chief. 

Third, Congress removed the previous


      7   For the Appointments Clause analysis here, I treat
 the terms “competitive service” and “classified civil service”
 as interchangeable. See, e.g., 5 U.S.C. § 2102(c) (2018) (“As
 used in other Acts of Congress, ‘classified civil service’ or
 ‘classified service’ means the ‘competitive service[.]’”).
Case: 18-1831    Document: 97     Page: 21   Filed: 01/31/2020




 POLARIS INNOVATIONS LIMITED v. KINGSTON TECHNOLOGY       19
 CO. INC.


 language appointing examiners-in-chief under the compet-
 itive service, but added the current § 3(c), giving Title 5
 protections to USPTO employees and officers. 

 4713, § 3(c), 113 Stat. at 1501A-577 (codified as amended
 at 35 U.S.C. § 3(c) (2000)). This meant that even though
 their title changed, APJs remained subject to discipline or
 dismissal subject to the efficiency of the service standard.
 See 5 U.S.C. § 7513 (2000). Fourth, the amendment trans-
 ferred the power to appoint APJs from the Secretary of
 Commerce to the Director. Patent and Trademark Office
 Efficiency Act, Pub. L. 106–113, ch. 1, sec. 4717, 113
 Stat. 1501, 1501A-581 (1999) (codified at 35 U.S.C. § 6(a)
 (2000)).
      This fourth change is particularly significant because
 only a few years later, Congress explicitly considered the
 constitutionality of this choice—whether APJs were em-
 ployees that could be appointed by the Director or officers
 that must be appointed by the Secretary of Commerce.
 Congress chose the latter. Consideration of this issue was
 prompted by an intellectual property law scholar’s sugges-
 tion in 2007 that APJs were inferior officers, not employ-
 ees, and therefore must be appointed by the President, a
 Court of Law, or the Head of a Department. See John F.
 Duffy, Are Administrative Patent Judges Unconstitu-
 tional?, 2007 PATENTLY-O PAT. L.J. 21, 25 (2007). Congress
 responded swiftly, amending the law in 2008 to give the
 power to appoint APJs back to the Secretary of Commerce.
 Patent and Trademark Administrative Judges Appoint-
 ment Authority Revision, Pub. L. 110–313, sec. 1, § 6, 122
 Stat. 3014, 3014 (2008) (codified as amended at 35 U.S.C.
 § 6(a) (2012)). While some legislators viewed the fix as un-
 necessary, none suggested that APJs were in fact principal
 officers appointable only by the President. Compare 154
 Cong. Rec. H7234 (daily ed. Jul. 29, 2008 edition) (state-
 ment of Rep. King) (“[A] straightforward reading of article
 II, section 2, which I strongly endorse, suggests the 1999
 authority that Congress bestowed on the Patent and
Case: 18-1831      Document: 97    Page: 22     Filed: 01/31/2020




 20       POLARIS INNOVATIONS LIMITED v. KINGSTON TECHNOLOGY
                                                      CO. INC.


 Trademark Office Director to appoint administrative law
 judges is unconstitutional, inconsistent with article II, sec-
 tion 2. Instead, this right is more properly reserved for . . .
 the Secretary of Commerce . . . .”), with 

 Rep. Cohen) (“We firmly believe that appointments made
 by the Director are constitutional.”). That Congress ex-
 plicitly considered the constitutionality of APJ appoint-
 ments just four years before passing the AIA, and
 confirmed their appointment by the Head of a Department,
 strongly suggests that Congress believed APJs were infe-
 rior officers in 2000, 2007, and 2011, and thus, could be
 constitutionally appointed by the Secretary, even with re-
 strictions on their removal.
      Finally, though Congress made significant changes to
 Title 35 through the AIA, it did not modify § 3(c)’s applica-
 tion of Title 5 protections to USPTO employees and offic-
 ers. 8 35 U.S.C. § 3(c) (2012). Yet again, APJs remained
 subject to the efficiency of the service removal standard ap-
 plicable to many federal employees.
     Further confirmation regarding Congressional intent
 comes from the fact that § 3 provides specific, and limited,
 removal procedures for the Director and the Commissioner
 for Patents, as opposed to all other officers and employees
 subject to § 3(c). The Director may be removed only by the
 President. 35 U.S.C. § 3(a)(4). The Commissioner may be
 removed “for misconduct or nonsatisfactory performance”
 under her performance agreement, “without regard to the
 provisions of title 5.” 35 U.S.C. § 3(b)(2)(C). That Congress
 described specific removal procedures for these two


      8   The AIA did amend 35 U.S.C. § 3(b), see Leahy-
 Smith America Invents Act, Pub. L. 112-29, sec. 21, § 3(b),
 125 Stat. 284, 336 (2011) (governing the Director’s ability
 to fix pay for APJs), and 35 U.S.C. § 3(e)(2), 

20
 § 3(e)(2), 125 Stat. at 334 (technical amendment changing
 “this Act” to “that Act”).
Case: 18-1831     Document: 97      Page: 23    Filed: 01/31/2020




 POLARIS INNOVATIONS LIMITED v. KINGSTON TECHNOLOGY           21
 CO. INC.


 positions strongly implies it intended that all other USPTO
 employees and officers enjoy the Title 5 protections pro-
 vided in § 3(c).
     Given this unbroken line of federal employment protec-
 tion afforded to APJs and their predecessors for over three
 decades, I question whether severing § 3(c)’s Title 5 re-
 moval protections for APJs “remains consistent with Con-
 gress’ initial and basic . . . intent.” 

.
 My concerns are not alleviated by the Arthrex panel’s focus
 on Congress’s intent as it pertained to the importance of
 inter partes review, without considering why Congress
 chose to provide Title 5 employment protections to APJs for
 decades. See 

–38.
                                D
     Finally, I am mindful of the Supreme Court’s guidance
 that:
     Our ability to devise a judicial remedy that does not
     entail quintessentially legislative work often de-
     pends on how clearly we have already articulated
     the background constitutional rules at issue and
     how easily we can articulate the remedy. . . . But
     making distinctions in a murky constitutional con-
     text, or where line-drawing is inherently complex,
     may call for a ‘far more serious invasion of the leg-
     islative domain’ than we ought to undertake.
 Ayotte v. Planned Parenthood of N. New England, 

, 329−30 (2006) (quoting United States v. Nat’l Treasury
 Emps. Union, 

, 479 n.26 (1995)). Given the
 limited extent of Appointments Clause jurisprudence and
 Congress’s repeated decisions to provide federal employ-
 ment protections to APJs for decades, I am particularly
 concerned that Arthrex’s remedy constitutes an unwise in-
 vasion of the legislative domain.
     I recognize that the Arthrex panel considered several
 potential fixes and chose the one it viewed both as
Case: 18-1831    Document: 97     Page: 24    Filed: 01/31/2020




 22    POLARIS INNOVATIONS LIMITED v. KINGSTON TECHNOLOGY
                                                   CO. INC.


 constitutional and minimally disruptive. But removing
 long-standing employment protections from hundreds of
 APJs is quite disruptive. Given no clear evidence that Con-
 gress would have intended such a drastic change, I would
 defer to Congress to fix the problem. This is a legislative
 problem best left to a legislative solution. Congress faces
 fewer constraints than we do in fixing an unconstitutional
 statute. For example, Congress might choose to: grant the
 Director unilateral review over all Board decisions; make
 the Chief PTAB Judge a presidential appointee and grant
 her review of all Board decisions; provide for review of
 Board decisions by a panel of three Presidential appointees
 at the USPTO (having created at least two such positions
 in addition to the Director); or provide for presidential ap-
 pointment of all APJs.
     In sum, I believe the Director currently exercises suffi-
 cient oversight and supervision of APJs to render them in-
 ferior officers under the Appointments Clause. But if APJs
 must be viewed as principal officers, I question curing the
 ensuing constitutional violation by removing their Title 5
 removal protections because I believe it conflicts with Con-
 gress’s intent.