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Justices Craft Their Own Remedy for Violation of Constitution’s Appointments Clause

On Monday, the justices ruled 5-4 that the “unreviewable authority” of administrative patent judges meant those APJs were appointed in violation of the Constitution’s appointments clause. The justices then ruled 7-2 that the...more

Carr v. Saul – Has the Court Tired of Issue Exhaustion? Potential Effects on Arthrex

On April 22, 2021, the Supreme Court decided Carr v. Saul, a case with interesting parallels to Arthrex, which deals with appointments clause challenges to the PTAB judges and which will be decided later this Term. In Carr,...more

Reading Arthrex’s Tea Leaves – Three Exchanges at the Oral Argument That May Hint at the Fate of Patent Judges

The oral argument in the combined Arthrex cases was held on March 1, 2021. While the parties argued what they considered to be the key issues in their merits briefing, the oral argument provided insight into how the justices...more

Justices Appear Conflicted About Status of Administrative Patent Judges

On Monday, the justices heard 90 minutes of argument in United States v. Arthrex, Inc. and two consolidated cases about whether hundreds of administrative patent judges of the U.S. Patent and Trademark Office are “principal...more

Justices To Consider Appointments Clause Challenge To Administrative Patent Judges

The justices continue their light load for the February argument session next week. First up is Monday’s United States v. Arthrex, Inc., consolidated with both Smith & Nephew, Inc. v. Arthrex, Inc. and Arthrex, Inc. v. Smith...more

In Arthrex Reply Brief, Government Reiterates and Stands Firm

Smith & Nephew and the United States filed their reply briefs on January 22. In its reply brief, the United States rebuts many of the positions taken by Arthrex in its initial merits brief. While Smith & Nephew, in its reply,...more

Replying on Arthrex, the Smith & Nephew Reply Brief

Smith & Nephew and the United States filed their reply briefs on January 22. Smith & Nephew’s reply brief, which we review here, critiques the arguments Arthrex made in its initial merits brief, addresses some issues raised...more

Setting the Stage: Court Sets Oral Argument in Arthrex Cases

The U.S. Supreme Court has scheduled oral argument in the Arthrex cases (docket 19-1434) for March 1, 2021. And, as of January 11, 2021, the Court has accepted the oral argument time divisions proposed by the Acting Solicitor...more

In Support of Arthrex – Amicus Briefs Urge Court To Leave Remedy To Congress

In the wake of Arthrex’s initial merits brief, amicus briefs in support of Arthrex’s position were filed December 29th and 30th. In the Arthrex cases (docketed as 19-1434), the parties have persuaded the Supreme Court to...more

Arthrex’s Initial Merits Brief – Making the Case for Patent Judges as Principal Officers

Progress in the Arthrex case before the Supreme Court continues as Arthrex submitted its initial merits brief on December 23rd. We have previously discussed the decision by the Federal Circuit, the Supreme Court’s grant of...more

What Arthrex Could Mean for the PTAB Going Forward

Now that the Supreme Court has granted cert in Arthrex v. Smith & Nephew, patent owners and petitioners alike may be wondering what ramifications the Court’s decision may have on their proceedings.  In this article, we...more

Arthrex Stands (For Now)

As we previously covered, on October 31, 2019, the Federal Circuit held in Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320, that PTAB judges (i.e., administrative patent judges, or APJs) were principal officers appointed...more

Federal Circuit Demotes Unconstitutionally Appointed PTAB Judges

With the Supreme Court in Oil States v. Greene’s Energy holding IPRs constitutional under Article III, and the Federal Circuit in Celgene v. Peter holding the retroactive use of IPRs against pre-AIA patents not to be an...more

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