All Parties in Arthrex Want the Full Federal Circuit to Render a Better Decision

On December 16, the U.S. Government, Arthrex, Inc., and Smith & Nephew, Inc. each submitted petitions for rehearing and/or rehearing en banc asking the full Federal Circuit to reconsider its October 31 ruling in Arthrex v. Smith & Nephew, Inc, which made Patent Trial and Appeal Board  (PTAB) judges “inferior officers” under the U.S. Appointments Clause, in order to skirt the problem that they had been unconstitutionally appointed under the America Invents Act. Many have criticized the quick-fix approach. The case stems from Arthrex, Inc.’s appeal from the final written decision of the PTAB holding certain claims of its U.S. Patent No. 9,179,907 unpatentable as anticipated. On appeal, Arthrex argued that the appointment of the PTAB’s Administrative Patent Judges (APJs) by the Secretary of Commerce violated the Appointments Clause of the U.S. Constitution. The Court somewhat surprisingly agreed and remedied the problem by simply “severing any ‘problematic portions while leaving the remainder intact,’” as outlined in Free Enterprise Fund v. Public Company Accounting Oversight Board and Intercollegiate Broadcasting System, Inc. v. Copyright Royalty Board.

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