CAFC Provides Last Word in PTAB Appointments Clause Debate
Given the remands that have been flowing back to the Patent Trial & Appeal Board (PTAB) from the Federal Circuit over the past few weeks, the writing has been on the wall as to en banc rehearing in Arthrex v. Smith & Nephew Inc. The Court officially denied rehearing today. Still, the 62 pages of differing viewpoints offered by the Court in its denial of rehearing essentially presented the Court’s collective reasoning anyway.
The per curiam opinion explained the earlier decision in the context of the dissenting views. That is, as between striking down the AIA and severing Title 5 protections for administrative patent judges, Congress was more likely to favor the latter.