This will be a short post, because I'm in Chicago for a conference at John Marshall and don't have a lot of time to devote to it. In addition, the case is not really related to patent remedies, but nevertheless it's pretty hard to ignore. Today in Arthrex, Inc. v. Smith & Nephew, Inc., the Federal Circuit held that, under the Patent Act, Administrative Patent Judges (APJs)--the PTAB judges who preside over, among other things, IPRs--are "principal officers" of the United States; and that because they are appointed by the Secretary of Commerce rather than by the president, subject to the subject to the advice and consent of the Senate, their appointment is unconstitutional. However, the court also concluded that it could sever the provision of the statute preventing PTAB judges from being fired without cause, and that doing so would render the judges "inferior officers" subject to removal by the Director of the USPTO and therefore constitutional. The court vacated and remanded the case to a new PTAB panel, and stated that its ruling would only affect cases in which the PTAB rendered a final written decision and the litigants raised the appointments issue on appeal. So IPRs are, mostly, saved, and (I should think) most final written decisions issued to date will remain valid--though I would guess there will be a petition for rehearing and possible Supreme Court review.
This is an important case--though if you find the issues immensely confusing, join the club. If, on the other hand, you're a separation of powers or administrative law maven, you probably will find the issues raised in the opinion endlessly fascinating. Either way, it's an important case. Further discussion on Bloomberg, Law360, FedCircuitBlog, and Patents Post-Grant.
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