Arthrex en banc Denied – The Big Picture, PTAB Litigation Blog

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On Monday, March 23, 2020, the Federal Circuit denied rehearing and rehearing en banc in the Arthrex appeal that found PTAB ALJs to be unconstitutional appointments  Arthrex, Inc. v. Smith & Nephew, Inc., No. 18-2140, Order Denying Rehearing and Rehearing En Banc, Dkt. 115.  The denial is accompanied by two opinions concurring in the denial and three opinions dissenting from the denial.  Four judges did not join any of the opinions.  The four judges dissenting—who we have heard from before—and the four judges concurring disagree fundamentally on whether APJs were principal officers and whether severing removal protections was a proper fix.

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