Judges Disagree on Arthrex, But Rehearing Vote Fails, PTAB Litigation Blog
On March 23, 2020, the Federal Circuit denied rehearing and rehearing en banc in Arthrex. Arthrex, Inc. v. Smith & Nephew, Inc., No. 18-2140, Order Denying Rehearing and Rehearing En Banc, Dkt. 115. The court held in Arthrex that PTAB judges—called administrative patent judges or APJs—were principal officers appointed in violation of the Constitution. The denial for rehearing is accompanied by five separate opinions that include two concurrences and three dissents. The dissenting and concurring judges disagree fundamentally on whether APJs were principal officers—as the original Arthrex panel held—and whether severing removal protections for APJs was a proper fix to the Appointments Clause issue.
Jones Day publications should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information purposes only and may not be quoted or referred to in any other publication or proceeding without the prior written consent of the Firm, to be given or withheld at our discretion. To request reprint permission for any of our publications, please use our “Contact Us” form, which can be found on our website at www.jonesday.com. The mailing of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship. The views set forth herein are the personal views of the authors and do not necessarily reflect those of the Firm.