US Supreme Court Grants Review of Arthrex Decision

October 16, 2020

On October 13, the US Supreme Court agreed to review the landmark decision in Arthrex v. Smith & Nephew, in which the Federal Circuit held that the appointment of Patent Trial and Appeal Board (PTAB) administrative patent judges (APJs) by the Secretary of Commerce violated the US Constitution’s Appointments Clause. In that October 2019 opinion, the appeals court ruled 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, ostensibly curing the constitutional defect by severing the portion of the statute that restricts the APJs’ removal in order to render them inferior officers. The Arthrex decision, which the Federal Circuit declined to rehear en banc in March, may allow rehearings for numerous America Invents Act (AIA) reviews, though the PTAB has since held in abeyance all such rulings remanded under the court’s holding.

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