On October 31, 2019, in Arthrex, Inc. v. Smith & Nephew, Inc., a three-judge panel of the Federal Circuit held that the way the U.S. Patent and Trademark Office has appointed administrative patent judges at the Patent Trial and Appeal Board violates the Appointments Clause of the Constitution (Art. II, sec. 2, cl. 2), in an opinion by Judge Moore, joined by Judges Reyna and Chen.  According to the opinion, because APJs are principal officers they must be nominated by the President and confirmed by the Senate.  Although the opinion provides a remedy (having Congress abrogate the severability clause of these APJs' appointments), the legitimacy of the PTAB to render decisions in the meantime has been abrogated by the Court, and the effect on (1) pending PTAB proceedings, (2) pending appeals of PTAB decisions at the Federal Circuit and the Supreme Court, and (3) the thousands of judgments by the PTAB since passage of the Leary-Smith America Invents Act is uncertain.  District court litigation stayed in favor of a PTAB proceeding may also be impacted.

This decision will be the subject of a future post.