Government to Request Arthrex Rehearing; Rush for Remands Slowed, PTAB Litigation Blog

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On October 31, 2019 a panel of Federal Circuit Judges issued the Arthrex Inc. v. Smith and Nephew, Inc. opinion finding the appointment of PTAB judges unconstitutional by violating the Appointments Clause.  The panel’s remedy in that case was to judicially modify a statutory provision by which PTAB judges could be removed and remand the Arthrex matter to a new PTAB panel for a new oral hearing and Final Written Decision.  But the Federal Circuit stated that it will not entertain Appointments Clause challenges if not raised in the opening briefs. The Court has vacated and remanded some IPR decisions where a party raised the Appointments Clause challenge in their opening brief.

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