Judge Dyk Says Arthrex Remedy is Unnecessary, PTAB Litigation Blog

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Judge Dyk and Judge Newman disagree with the Arthrex remedy requiring rehearing.  In Arthrex, the Federal Circuit panel of Judges Moore, Reyna, and Chen held the appointment of Administrative Patent Judges (APJs) was an unconstitutional violation of the Appointments Clause (U.S. Const. art. II, § 2, cl. 2.), severed a portion of the Patent Act to cure the unconstitutionality, and remanded the case for hearing before a new panel of constitutionally appointed APJs.  Arthrex, Inc. v. Smith & Nephew, Inc., et al., No. 18-2140 (Fed. Cir. 2019).  Last Thursday, The Federal Circuit applied Arthrex to vacate and remand three inter partes review (IPR) decisions by the Patent Trial and Appeal Board (PTAB).  Bedgear, LLC v. Fredman Bros. Furniture Company, Inc., No. 18-2082 (Fed. Cir. 2019).  In Bedgear, Judge Dyk, joined by Judge Newman, concurred in the judgement and wrote separately to dispute the remand and rehearing remedy in Arthrex.

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