Review of APJ Appointments to Be Considered by SCOTUS

Back in November of 2019 the House Judiciary Committee conducted a hearing entitled “The Patent Trial and Appeal Board and the Appointments Clause: Implications of Recent Court Decisions.” The hearing explored whether or not the Federal Circuit solution pronounced in Arthrex was effective to cure the Appointments Clause defect.  While there was some debate over whether the “fix” would hold, all of the witnesses were unanimous in that Congress, could, and should, fix the issue in the short term.

Today, Arthrex was granted cert.  I expect that Congress will now turn back to their earlier discussed legislative fix.
Continue Reading Arthrex Cert Likely to Spur Previously Discussed Legislative Fix

Federal Government Seeks Cert on Appointments Clause & Forfeiture Issues

On June 25th, the federal government filed a petition (here) for certiorari asking the Supreme Court to review the CAFC’s decisions in both Arthrex, Inc. v. Smith & Nephew, Inc., No. 2018-2140 (Fed. Cir. Oct. 31, 2019) and Polaris Innovations Ltd. v. Kingston Tech. Co., Inc., No. 2018-1831 (Fed. Cir. Jan. 31, 2020).  This petition comes as no surprise after the CAFC’s fractured denial of an en banc Arthrex rehearing.

The Court has had occasion to consider Appointments Clause issues several times in recent years, most notably in Lucia v. SEC (2018), and again touching upon the issue last week in Seila Law LLC v. CFPB. 

Is there a SCOTUS appetite for the gov’t’s issues?
Continue Reading PTAB Appointments Clause Debate: SCOTUS Preview

PLI Program to Focus on the State of the PTAB

This coming Monday, April 13th, the Practising Law Institute (PLI) will host a one-hour briefing at 3PM(EST) entitled: COVID-19 and PTAB Recalibration — Virtual Trials and Evolving Agency Workflows. (Register here).  I am pleased to once again team with Rob Sterne of