Fed. Cir. Dissent: Opening Brief Lacking Appointments Clause Mention Still Eligible for Remand, PTAB Litigation Blog
Last week, the Federal Circuit denied a motion to vacate and remand an IPR decision under Arthrex, Inc. v. Smith & Nephew, Inc.
Issued on October 31, Arthrex held that the method for appointing PTAB Administrative Patent Judges violated the Appointments Clause. Arthrex purported to fix the Appointments Clause issue by removing certain employee protections from APJs, making APJs terminable at will by the USPTO Director and therefore not subject to the Appointments Clause. Following the decision, certain Federal Circuit appellants have moved that the Court vacate and remand Board decisions under Arthrex, to be reheard by a different PTAB panel.
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