The Federal Circuit has ruled that the appointment of Patent Trial and Appeal Board (PTAB) administrative patent judges (APJs) by the Secretary of Commerce violates the US Constitution’s Appointments Clause. In an October 31 opinion, the appeals court held in Arthrex v. Smith & Nephew that the statute governing PTAB judge appointments in its then-current form made the APJs principal officers who should have been confirmed by the US Senate (2018-2140). However, the Federal Circuit stopped short of overturning the AIA review regime altogether, limiting its decision in multiple key respects.

RPX’s recent article, available here, provides an in-depth treatment of the Federal Circuit’s decision in Arthrex. A subsequent RPX analysis, available here, leverages RPX’s proprietary litigation database to assess the number of AIA reviews that may be affected by Arthrex and takes a look at what may come next—including how some litigants have reacted to the ruling.