Use It Or Lose It – Second Appeal Appointments Clause Challenge Deemed Forfeited, PTAB Litigation Blog

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An April 13, 2021 decision by the Federal Circuit denied a motion to vacate and remand PTAB decisions based on the Federal Circuit’s October 2019 decision in Arthrex v. Smith & Newman, Inc., et al., 941 F.3d 1320 (Fed. Cir. 2019), because the appellant, Vivint, had forfeited its Appointments Clause challenge by not raising it in an earlier appeal of the case to the Federal Circuit where Vivint was also an appellant. Vivint v. Inc., No. 2019-2438, 2019-2439 (Fed. Cir. Apr. 13, 2021). Arthrex held that Administrative Patent Judges (“APJs”) are principal officers under the Appointments Clause and therefore must be appointed by the President and confirmed by the Senate.  In a 2-1 decision, the panel majority held that Vivint had forfeited its Appointments Clause challenge when it had failed to raise the issue in their first appeal, and that the Arthrex decision was not a change in law sufficient to create an exception to that forfeiture. Vivint adds to a number of earlier Federal Circuit holdings finding parties had forfeited application of Arthrex. It also reiterates that a party must raise an Appointment Clause challenge, if at all, before the first court who can provide it relief.

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