We recently discussed the Federal Circuit’s decision in Arthrex, Inc. v Smith & Nephew, Inc., and the constitutional question concerning the appointment of the administrative patent judges (APJs) who hear all Patent Trial and Appeal Board (PTAB) trials. The original panel decided Arthrex in November 2019 and found the judges to be improperly appointed, struck a portion of the America Invents Act (AIA) statutory framework to correct the issue, and remanded the case to the PTAB for rehearing (with a now properly appointed panel of APJs). During the appeal, the US Patent and Trademark Office (USPTO) intervened in support of the propriety of the APJs both before the remedy prescribed in Arthex and afterward. All parties sought en banc review. And in March 2020, the Federal Circuit denied those requests.
Read the full article here.
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Arthrex v. Smith & Nephew , United States Court of Appeals for the Federal Circuit (CAFC), Supreme Court of the United States (SCOTUS), Patent Trial and Appeal Board (PTAB), America Invents Act (AIA)
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Originally printed in CIPA Journal on January 2021. This article is for informational purposes, is not intended to constitute legal advice, and may be considered advertising under applicable state laws. This article is only the opinion of the authors and is not attributable to Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, or the firm’s clients.
