Judges Disagree on Arthrex, But Rehearing Vote Fails, PTAB Litigation Blog

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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.

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