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.
Litigation
- U.S. Government Sides with Teva in Skinny Label SCOTUS Fight
- What I’ll Be Watching for in the Amgen Oral Arguments
- A Dog’s Day in Court: Implications of the ‘Bad Spaniels’ Arguments on Parody Determinations and Noncommercial Use
- SCOTUS Skeptical that Bad Spaniels is Parody, But Questions Need to Overturn Rogers
- Justices Seek Abitron Parties’ Help in Articulating Bounds of Extraterritorial Application of Lanham Act
Recent Posts
- Other Barks & Bites for Friday, March 31: Japan Restricts Chip-Making Exports, Ocado Scores UK High Court Win in Robotic Warehousing Case, and Judge Rejects Fair Use Defense for Internet Archive
- U.S. Government Sides with Teva in Skinny Label SCOTUS Fight
- Industry, NGOs Spar Over Need to Extend TRIPS COVID IP Waiver at ITC Hearing
- Software-Related U.S. Patent Grants in 2022 Remained Steady While Chinese Software Patents Rose 8%
- The Truth Leaks Out: Justices Struggle with the Science, Sanofi Welcomes End to Functional Genus Claims in Amgen Oral Arguments