There Is No Exception From Arthrex For Ex Parte Proceedings

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In re Boloro Global Ltd., Appeal Nos. 2019-2349, -2351 and -2353 (Fed. Cir., July 7, 2020).

Boloro appealed to the PTAB final rejections in three patent applications, which the PTAB ultimately affirmed. On appeal of the PTAB decisions to the Federal Circuit, Boloro moved to vacate the PTAB decisions and remand the appeals to different panels of the PTAB.

The Director opposed the motions to vacate and remand on the grounds that the Director “possesses ‘complete control over initial examination’ and could at any time prior to the Board proceedings have directed the issuance of Boloro’s patents but did not, consistent with the Board’s subsequent decisions.” Slip op. at 2-3. The Federal Circuit was not persuaded and granted Boloro’s motions. The court noted that the Director conceded that the APJ’s appointed were unconstitutional, and thus there was no basis to depart from the general rule. Accordingly, no matter the type of proceeding, any PTAB decision issued before Arthrex and under appeal is subject to vacatur and remand.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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