Update on Arthrex

We recently discussed the Federal Circuit’s decision in Arthrex, Inc. v Smith & Nephew, Inc., and the constitutional question concerning the appointment of the administrative patent judges (APJs) who hear all Patent Trial and Appeal Board (PTAB) trials. The original panel decided Arthrex in November 2019 and found the judges to be improperly appointed, struck a portion of the America Invents Act (AIA) statutory framework to correct the issue, and remanded the case to the PTAB for rehearing (with a now properly appointed panel of APJs). During the appeal, the US Patent and Trademark Office (USPTO) intervened in support of the propriety of the APJs both before the remedy prescribed in Arthex and afterward. All parties sought en banc review. And in March 2020, the Federal Circuit denied those requests. Read the full article here.