CAFC Holds that Request to PTAB Adjudication Waives Constitutionality Challenge

In Ciena Corporation v. Oyster Optics, LLC, No. 2019-2117 (Fed. Cir. 2020), the Federal Circuit denied Ciena Corporation’s motion to vacate the PTAB’s final written decision and remand for further proceedings consistent with Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019). The Court held that by requesting that the Board adjudicate its IPR petition, Ciena Corporation consented to having the assigned Board judges rule upon its invalidity challenges, regardless of how the judges were appointed. Additionally, Ciena also sought a stay in the district court litigation initiated by Oyster, further signaling Ciena’s acceptance of the PTAB’s authority. Thus, unlike the Arthrex patent owner who had no choice but to respond at the PTAB to the petitioner, Ciena Corporation’s active pursuit of the PTAB’s judgment waived any Appointment Clause challenge.