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« Idenix Pharmaceuticals LLC v. Gilead Sciences Inc. (Fed. Cir. 2019) | Main | Launch of New Diagnostics and Cancer Advocacy Group Announced »

October 31, 2019


The decision touches upon at least four factors in deciding between inferior and principal officer levels:
1 - Power of Review - prior to binding final decision (seen as indicating principal status)
2 - Supervision (seen as indicating inferior status)
3 - Removal Power (CHANGED to pivot from principal to inferior status)**
4 - Other (the case of Edmond provides: subject to removal by the Attorney General, performed limited duties, had limited jurisdiction, and had a limited tenure.*** The court then adds a "1975 factor," but one has to wonder if that has any force (given the subsequent changes).

What other factors may there be?

** This part of the decision is the most critical - and the most confusing, as it sidesteps the "I can appoint, therefore I can dis-appoint (at any time) argument."

*** interesting that this factor is stated to lean against inferior status, but is not counted in the math (2 to 1) by the court - with their change being a "minimal change" to effect the swing from principal to inferior status.

Aside from the fact that the court has indeed legislated from the bench and rewritten the structural law (even as they claim not to have done so), the math of the given factors (excluding the odd "1975 factor"), yields a change of 1-3 in favor of "inferior" to a TIE of 2-2.

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