Federal Circuit Faces Pressure from Four Directions in New Year

With several significant decisions coming out of the U.S. Court of Appeals for the Federal Circuit in 2020, the court is being watched closely by the Supreme Court of the United States, the Patent Trial and Appeal Board (PTAB), federal district courts, and Congress for what’s next in 2021. Bloomberg Law interviewed Finnegan partner Dori Hines for her insight on what these venues are tracking at the Federal Circuit.

In October, the Supreme Court agreed to review the Federal Circuit’s decision Arthrex Inc. v. Smith & Nephew Inc., a case that calls into question whether PTAB administrative patent judges are constitutional. The decision in Arthrex could result in the PTAB having to redo hundreds of cases, which could then be appealed again to the Federal Circuit. Dori said, “It could have a pretty dramatic impact on the Federal Circuit’s docket, depending on how the Supreme Court comes out. That one is the case to watch this year.”

Patent issues in front of Congress include addressing the rules that govern the patent office, clarifying what is eligible for patent protection, and considering the future of PTAB judges. However, Dori believes any action from Congress on case law eligibility “seems unlikely for the foreseeable future,” so it may instead “be up to the Federal Circuit to make incremental progress and provide some predictability.”

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