Following up on a November 4th oral argument (accessible here) that focused on the Arthrex Appointments Clause issue, the Federal Circuit has requested additional briefing from Polaris, Kingston, and the U.S. regarding the proper remedy for the Arthrex finding that PTAB judges were unconstitutional appointees. Specifically, the Federal Circuit ordered:

The parties and the government shall file supplemental briefing addressing the constitutional questions raised in these cases, including:

1. what level of supervision and review distinguish a principal from an inferior officer;
2. whether severing the application of Title 5’s removal restrictions with respect to APJs under 35 U.S.C. § 3(c) sufficiently remedies the alleged unconstitutional appointment at issue in these appeals;
3. whether, and how, the remedy for an Appointments Clause violation differs when it stems from an unconstitutional removal restriction, rather than an unconstitutional appointment itself; and
4. whether severing the application of Title 5’s removal restrictions with respect to APJs under 35 U.S.C. § 3(c) obviates the need to vacate and remand for a new hearing, given the Supreme Court’s holdings on the retroactive application of constitutional rulings. E.g., Harper v. Virginia Dep’t of Taxation, 509 U.S. 86 (1993).

Each party’s response is limited to 20 pages, double spaced, and shall be filed no later than December 6, 2019.

We will continue to monitor and report on developments.