A panel of the US Court of Appeals for the Federal Circuit considered whether the Patent Commissioner, on assuming the role of the US Patent & Trademark Office (PTO) Director, can constitutionally evaluate the rehearing of...more
ARTHREX, INC. v. SMITH & NEPHEW, INC. Before Moore, Reyna, and Chen. Appeal from the Patent Trial and Appeal Board. Summary: During vacancies of Director and Deputy Director of the U.S. Patent and Trademark Office,...more
Arthrex appealed a final written decision from an inter partes review (IPR) where the U.S. Patent Trial and Appeal Board (PTAB) found all challenged claims of its patent anticipated. On appeal, Arthrex argued that the...more
[co-author: Jamie Dohopolski] Last year, the continued global COVID-19 pandemic forced American courts to largely continue the procedures set in place in 2020. The U.S. Court of Appeals for the Federal Circuit was no...more
In United States v. Arthrex, Inc., the Supreme Court held that Patent Trial and Appeal Board (PTAB) administrative patent judges (APJs) are unconstitutionally appointed. However, the Court resolved the problem by making PTAB...more
On Monday, in a highly-anticipated decision, a fractured Supreme Court issued its opinion in United States v. Arthrex, et al., striking a portion of the America Invents Act (AIA) as unconstitutional—but providing an...more
On June 21, 2021, the US Supreme Court issued its decision in Arthrex, Inc. v. Smith & Nephew, Inc., No. 19-1434. The Court found that the provisions of the America Invents Act establishing inter partes review proceedings...more
The US Supreme Court issued its highly anticipated decision on June 21 in United States v. Arthrex, Inc., addressing whether the authority of administrative patent judges (APJs) of the Patent Trial and Appeal Board (PTAB) to...more
The US Supreme Court held in United States v. Arthrex that administrative patent judges’ ability to render final decisions on patentability on behalf of the Executive Branch is “incompatible with their status as inferior...more
In response to arguments made by the US government in an appeal pending before the US Supreme Court, members of Congress requested an investigation into the adequacy of due process afforded to Patent Trial and Appeal Board...more
An April 13, 2021 decision by the Federal Circuit denied a motion to vacate and remand PTAB decisions based on the Federal Circuit’s October 2019 decision in Arthrex v. Smith & Newman, Inc., et al., 941 F.3d 1320 (Fed. Cir....more
On March 1, 2021, the Supreme Court heard oral arguments in Arthrex v. Smith & Nephew, No. 19-1434, on March 1, 2021, asking whether the appointment of PTAB judges is consistent with the way that “Officers of the United...more
As discussed here, the Justices asked many questions in the oral argument in Arthrex this week on both questions: (1) whether there was an Appointments Clause defect and (2) if so, whether the Federal Circuit properly cured...more
The Supreme Court heard argument on Monday in U.S. v. Arthrex, involving the question of whether appointment of Administrative Patent Judges (APJs) and their authority under the Leahy-Smith America Invents Act violates the...more
On March 1, 2021, the Supreme Court heard the oral argument in Arthrex, Inc. v. Smith & Nephew, Inc., No. 19-1434. Two questions are before the Court. First, whether under the Appointments Clause, U.S. Const. Art. II, § 2,...more
On Monday the Supreme Court heard arguments in the Arthrex case (Nos. 19-1434; -1452; -1458) regarding whether PTAB judges are principal officers, who must be appointed by the president and confirmed, or whether they are...more
When oral arguments commence in United States v. Arthrex, Inc., No. 19-1434 (U.S.) on Monday, March 1, William H. Milliken, a director in Sterne Kessler’s Trial & Appellate Practice Group, will be live tweeting updates from...more
In October 2020, the Supreme Court agreed to review the Federal Circuit’s holding in Arthrex Inc. v. Smith & Nephew Inc., 941 F.3d 1320 (Fed. Cir. 2019), that the scheme for appointing the Patent Trial and Appeal Board’s...more
In October 2020, the U.S. Supreme Court agreed to hear a case that could affect the viability of the Patent Trial and Appeal Board (PTAB) as well as countless PTAB patentability decisions — past, present and future....more
In the wake of Arthrex’s initial merits brief, amicus briefs in support of Arthrex’s position were filed December 29th and 30th. In the Arthrex cases (docketed as 19-1434), the parties have persuaded the Supreme Court to...more
Progress in the Arthrex case before the Supreme Court continues as Arthrex submitted its initial merits brief on December 23rd. We have previously discussed the decision by the Federal Circuit, the Supreme Court’s grant of...more
Now that the Supreme Court has granted cert in Arthrex v. Smith & Nephew, patent owners and petitioners alike may be wondering what ramifications the Court’s decision may have on their proceedings. In this article, we...more
The Supreme Court recently granted three petitions for certiorari challenging the Federal Circuit’s holding in Arthrex v. Smith & Nephew that administrative patent judges of the Patent Trial and Appeal Board (PTAB) are...more
The Supreme Court of the United States agreed to consider whether Patent Trial and Appeal Board (PTAB) judges are unconstitutionally appointed. The United States of America v. Arthrex, Inc., Case Nos. 19-1452, -1458, -1459...more
While all eyes have been trained on the confirmation hearings from last week, the Supreme Court made news in the IP world. The Court granted certiorari in Arthrex v. Smith & Nephew (Nos. 19-1434, -1452, -1458), a decision...more