Certain Inter Partes Reexam Proceedings Remain Under Arthrex’s Shadow

May 17, 2020

In January 2020, the Federal Circuit sided with VirnetX Inc. in an appeal from a decision by the Patent Trial and Appeal Board (PTAB) in an inter partes reexamination triggered by Cisco. As VirnetX requested, the court vacated the decision and remanded the case back to the Board under its Arthrex decision: “Although this appeal arises out of an inter partes reexamination and not an inter partes review [IPR] as was at issue in Arthrex, we see no material difference in the relevant analysis. We therefore grant VirnetX’s motion”. Late last week, the same three judges denied a request for panel rehearing by Cisco and the Director of the USPTO (as intervenor), issuing an additional order “for the purpose of more fully explaining our rationale for rejecting” the argument that “administrative patent judges (‘APJs’) should be deemed constitutionally appointed officers at least when it comes to their duties reviewing appeals of inter partes reexaminations”.

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