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PTAB Lifts Arthrex Remand Stay, PTAB Litigation Blog

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On October 26, 2021, Chief Administrative Patent Judge (“APJ”) Boalick lifted a May 1, 2020 stay issued by the PTAB pending the Supreme Court’s consideration of Arthrex in which 103 cases were placed in “administrative abeyance.”  The PTAB’s initial stay order, which was also issued by Chief APJ Boalick, was in response to the Federal Circuit’s October 31, 2019 Arthrex ruling. See Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019). In Arthrex, the Federal Circuit found that the PTO Director’s inability to remove APJs at will ran afoul of the Appointments Clause, and the court remedied this by severing the APJs’ employment protection from Title 5. Id. at 1338. In holding that the appointment of APJs violated the Appointments Clause, the Federal Circuit opened the door to the vacatur and remand of over a hundred PTAB decisions that had Final Written Decisions issued pre-Arthrex, which were now susceptible to Appointments Clause challenges. Id. at 1340. 

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