News & Analysis as of

Judicial Appointments Appointments Clause

Orrick, Herrington & Sutcliffe LLP

PTAB Snapshot – A Quarterly Report on Trends and New Precedent at the PTAB – Q3 The Arthrex Decision, Its Impact on Prior IPR...

In this second edition of Orrick’s quarterly series on the PTAB, we summarize the Arthrex decision, walk through the PTO’s post-Arthrex interim procedure for reviewing PTAB decisions, and discuss potential post-Arthrex...more

McDonnell Boehnen Hulbert & Berghoff LLP

In re Boloro Global Ltd. (Fed. Cir. 2020)

Federal Circuit Extends Arthrex to Patent Prosecution - This week, the Federal Circuit extended its holding in Arthrex, Inc. v. Smith & Nephew, Inc., that administrative patent judges ("APJs") were improperly appointed in...more

Knobbe Martens

Federal Circuit Review - May 2020

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IPR Petitioners May Not Raise Appointments Clause Challenges Under Arthrex - In CIENA CORPORATION v. OYSTER OPTICS, LLC, Appeal No. 19-2117, affirmatively petitioning for IPR waived the petitioner’s Appointments Clause...more

Jones Day

ARTHREX UPDATE: In a Sea of Remands, PTAB Tosses Itself a Lifeline

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On May 1, 2020, the PTAB’s Chief Administrative Patent Judge Scott R. Boalick issued a General Order holding in administrative abeyance more than 100 matters and “any other matters remanded by the Federal Circuit under...more

Sunstein LLP

Federal Circuit Averts Huge Disruption to the Patent System by Fashioning a Cure to the Status of Administrative Judges

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In October 2019, a Federal Circuit panel concluded that the status of Administrative Patent Judges (APJs) on the Patent Trial and Appeal Board (PTAB) at the U.S. Patent and Trademark Office (PTO) violated the Appointments...more

McDonnell Boehnen Hulbert & Berghoff LLP

Federal Circuit Denies Rehearing En Banc in Arthrex

Last fall, the Federal Circuit held in Arthrex, Inc. v. Smith & Nephew, Inc. that the way the U.S. Patent and Trademark Office (“USPTO”) had appointed administrative patent judges (“APJs”) to the Patent Trial and Appeal Board...more

Morrison & Foerster LLP

Do We Already Know The Federal Circuit’s Final Answer In Arthrex?

While the rest of us wait on the Federal Circuit’s decision on the rehearing petitions in Arthrex, Inc. v. Smith & Nephew, Inc., there are signs that the Federal Circuit judges themselves may already have moved on. In...more

Troutman Pepper

U.S. Government in Search of Arthrex Reversal

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Image Processing Technologies LLC v. Samsung Electronics Co., LTD. et al., Appeal Nos. 2018-2156, 2019-1408, 2019-1485 (Fed. Cir. March 2, 2020). The Federal Circuit vacated and remanded the PTAB’s decisions against Image...more

Jones Day

FULL COURT PRESS: Arthrex Reconsideration Efforts Continue

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The Federal Circuit continues to be flooded with petitions to revisit its panel decision in Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320, No. 2018-2140 (Fed. Cir. 2019). As previously discussed, all three parties in...more

Sterne, Kessler, Goldstein & Fox P.L.L.C.

PTAB Strategies and Insights - January 2020

The PTAB Strategies and Insights newsletter provides timely updates and insights into how best to handle proceedings at the USPTO. It is designed to increase return on investment for all stakeholders looking at the entire...more

Jones Day

Update: Parties, Government Seek Rehearing in Arthrex

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January 17 Update: On January 17, each of the parties filed responses to the rehearing petitions - As we have previously discussed on this blog and elsewhere, the Federal Circuit’s decision in Arthrex v. Smith & Nephew...more

Jones Day

Timeline of Arthrex Developments

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The Federal Circuit’s decision in Arthrex v. Smith & Nephew excited and disrupted the patent world... Inter partes review (IPR) reshaped patent law and patent litigation this decade after the America Invents Act took effect....more

International Lawyers Network

Can Appointment of Administrative Patent Judges be Unconstitutional?

For the Patent and Trial Appeal Board (“PTAB”), the Administrative Patent Judges (“APJs”) are appointed by the Secretary of Commerce in consultation with the Director of the United States Patent and Trademark Office.  For an...more

Jones Day

Fed. Cir. Dissent: Opening Brief Lacking Appointments Clause Mention Still Eligible for Remand

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Last week, the Federal Circuit denied a motion to vacate and remand an IPR decision under Arthrex, Inc. v. Smith & Nephew, Inc. Issued on October 31, Arthrex held that the method for appointing PTAB Administrative Patent...more

McDermott Will & Emery

Principal or Inferior? PTAB APJ Appointment Held Unconstitutional

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In what has quickly turned into a controversial decision, the US Court of Appeals for the Federal Circuit held the appointment of administrative patent judges (APJs) at the Patent Trial and Appeal Board (PTAB)...more

Knobbe Martens

Appointments Clause Challenges After Arthrex Decision Must Have Been Raised in Opening Brief or Preceding Motions

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CUSTOMEDIA TECHNOLOGIES, LLC V. DISH NETWORK CORPORATION - Per Curiam Orders. Appeals from the Patent Trial and Appeal Board. Summary: The Federal Circuit’s recent decision in Arthrex finding that Administrative Patent...more

Schwabe, Williamson & Wyatt PC

Latest Federal Court Cases - November 2019

PATENT CASE OF THE WEEK - Arthrex, Inc. v. Smith & Nephew, Inc., Appeal No. 2018-2140 (Fed. Cir. Oct. 31, 2019) - In the most important case to affect America Invents Act review proceedings this year, the Federal Circuit...more

White & Case LLP

Federal Circuit Rules the Appointment of PTAB Judges Unconstitutional – IPR Appellants May Get Another Shot with Remand to PTAB

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On October 31, 2019, a three-judge panel of the Court of Appeals for the Federal Circuit ("CAFC") issued a decision, authored by Judge Moore, in Arthrex, Inc. v. Smith & Nephew, Inc., No. 18-2140. The CAFC held that the...more

Akin Gump Strauss Hauer & Feld LLP

Federal Circuit: Appointment of PTAB Judges Violates the Constitution’s Appointments Clause

In Arthrex, Inc. v. Smith & Nephew, Inc., the Federal Circuit held that appointment of Administrative Patent Judges (APJs) by the Secretary of Commerce violates the Appointments Clause of the U.S. Constitution. The court then...more

Womble Bond Dickinson

Federal Circuit Says PTAB APJ Appointments Were Unconstitutional – Now What?

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Yesterday October 31, 2019, a 3-judge panel of the Federal Circuit (Judges Moore, Reyna, and Chen) issued a unanimous decision holding that the USPTO’s appointment practice for Administrative Patent Judges (APJs) violates the...more

Mintz - Intellectual Property Viewpoints

Federal Circuit Holds Appointment of PTAB Judges Violates the Constitution, Vacates and Remands Final Written Decision

n a decision with potential far-reaching implications, Arthrex, Inc. v. Smith & Nephew, Inc., the Federal Circuit held Thursday that appointments of Administrative Patent Judges (“APJs”) of the Patent Trial and Appeal Board’s...more

Sterne, Kessler, Goldstein & Fox P.L.L.C.

Federal Circuit Finds the Appointment of PTAB Judges Unconstitutional and Provides Remedial Solution

Yesterday, in Arthrex, Inc. v. Smith & Nephew, Inc., a panel of the Federal Circuit unanimously held that the appointment scheme for the Patent Trial and Appeal Board’s (PTAB) Administrative Patent Judges (APJ) is...more

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