The Supreme Court's decision Tuesday to grant cert in the U.S. Patent and Trademark Office appointments clause cases surprised no one in the patent world. With the Federal Circuit having partly invalidated an act of Congress over constitutional concerns, with both parties and the government petitioning for cert, Supreme Court intervention was a foregone conclusion.

What happens next is far less clear. The court must decide whether the administrative presiding judges are principal officers of the United States—which would mean they have to be appointed by the president and confirmed by the Senate—or inferior officers, who are properly appointed by a cabinet chief, in this case the secretary of commerce. If the court decides they are principal officers, it must then decide if it can sever part of the patent laws, as the Federal Circuit did by eliminating civil service protections, to render them inferior officers and avoid the constitutional problem.