As most of us know by now, in Arthrex, Inc. v. Smith & Nephew, Inc., entered on Halloween 2019, a panel of the Federal Circuit held that the administrative patent judges (APJs) of the Patent Trial and Appeal Board (PTAB) were improperly appointed, and remanded the case for a new decision by a properly appointed panel. Almost immediately after, the court entered two orders dismissing motions for remand because the issue had not been timely raised. See Customedia Technologies, LLC v. Dish Network Corp., Nos. 18-2239 & 19-1001 (Fed. Cir., Nov. 1, 2019) (the motions were inferred from letters to the court). The Federal Circuit remanded a case in which the issue had been timely raised. Uniloc 2017 LLC v. Facebook, Inc., No. 18-2251 (Fed. Cir., Oct. 31, 2019). Predictions about the effect on pending cases overlook that the vast majority of PTAB final decisions come in appeals from the patent examining corps. Any of the hundreds of applicants dissatisfied with a recent PTAB appeal decision could appeal to the Federal Circuit and then promptly move for remand to a different panel. A reader could be forgiven for feeling a sense of déjà vu: in In re DBC, the Federal Circuit similarly found that APJs had been improperly appointed, but the issue was quickly resolved and now is remembered as a minor footnote in patent case law. In re DBC, 545 F.3d 1373 (Fed. Cir. 2008). Arthrex holds the potential to be far more significant. Indeed, Arthrex may prove more trick than treat.
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