Supplemental Briefing Focuses on Remedies

As discussed last week, the Federal Circuit has requested supplemental briefing in Arthrex Inc. v. Smith & Nephew to assess how best to remedy a potential Appointments Clause violation.  The supplemental briefing has now been submitted.  While the Court deliberates whether it is appropriate to remand or vacate the Arthrex matter, the government’s brief and Appellee brief look to the potential impact in other PTAB appeals.
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An Avalanche of FWD Do-Overs Imminent?

Back in June I explained the latest constitutional challenge to AIA Trial Proceedings under the Appointments Clause of the U.S. Constitution.  In a nutshell, the argument is that PTAB Administrative Patent Judges (APJ) are “superior officers” delivering the final word of the government in PTAB trial proceedings.  And that, as such, APJ actions are unconstitutional since they are not political appointees confirmed by the U.S. Senate — as the Appointments Clause requires.

That argument found its way to the Federal Circuit earlier this month in Arthrex Inc. v. Smith & Nephew, Inc.  At oral argument, the Court probed the Director’s ability to remove APJs, and seemed concerned that this deficiency was enough to violate the Appointments Clause.  An Order issued last week for additional briefing appears to reinforce the expectation that the Court will find the APJs functioning in violation of the Appointments Clause.


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Justice Dept. Defends Challenge to APJ Appointments

The latest constitutional challenge to the Patent Trial & Appeal Board (PTAB) involves the Appointments Clause.

The Appointments Clause of the U.S. Constitution has been interpreted to require that only “Principal Officers” of the United States — appointed by the President and confirmed by the Senate — can exercise “significant authority” pursuant to the laws of the United States. What is significant authority, you ask?  In a nutshell, the final word of the U.S. government.

So the debate in the now pending petition for certiorari in Polaris Innovations Ltd. v. Kingston Tech. (and in other petitions for cert raising the same issue) has become whether the APJs of the PTAB are superior officers rendering the final word of the government in PTAB trial proceedings, or whether they are instead functioning as “inferior officers” subject to the control of the Director (a political appointee, confirmed by the Senate).

The Government weighed in earlier this week on these petitions for certiorari.
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