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U.S. Patent and Trademark Office seeks stakeholder input on Patent Trial and Appeal Board decision-making procedures

The U.S. Patent and Trademark Office's interim procedures for reviewing decisions of the Patent Trial and Appeal Board are receiving increased scrutiny. On July 20, 2022, the PTO issued a notice announcing notice-and-comment...more

Federal Circuit Potentially Widens Door for PTAB to Identify Its Own Unpatentability Grounds for Substitute Claims

On March 24, 2022, the Court of Appeals for the Federal Circuit criticized the Precedential Opinion Panel's application of its standard for when it is (and isn't) appropriate for the Patent Trial and Appeal Board to sua...more

The US Supreme Court Fixes Constitutional Defect in the AIA by Making PTAB Decisions Reviewable by the USPTO Director

On June 21, 2021, the US Supreme Court issued its decision in Arthrex, Inc. v. Smith & Nephew, Inc., No. 19-1434. The Court found that the provisions of the America Invents Act establishing inter partes review proceedings...more

The Supreme Court Hears Oral Argument in Arthrex

On March 1, 2021, the Supreme Court heard the oral argument in Arthrex, Inc. v. Smith & Nephew, Inc., No. 19-1434. Two questions are before the Court. First, whether under the Appointments Clause, U.S. Const. Art. II, § 2,...more

The US Supreme Court Prohibits Parties from Appealing Untimeliness Challenges in IPRs

In a 7-2 decision written by Justice Ginsburg, the U.S. Supreme Court, in Thryv, Fka Dex Media v. Click-To-Call Techs., No. 18-916, 2020 U.S. LEXIS 2406 (2020), held that the Patent Trial and Appeal Board's ("Board") decision...more

Federal Circuit Denies Rehearing of Decision Finding the Appointment of PTAB Judges Unconstitutional

On March 23, 2020, the Court of Appeals for the Federal Circuit ("CAFC") issued a per curiam order denying all filed petitions for rehearing en banc and panel rehearing in Arthrex, Inc. v. Smith & Nephew, Inc. No. 18-2140...more

Federal Circuit Rules the Appointment of PTAB Judges Unconstitutional – IPR Appellants May Get Another Shot with Remand to PTAB

On October 31, 2019, a three-judge panel of the Court of Appeals for the Federal Circuit ("CAFC") issued a decision, authored by Judge Moore, in Arthrex, Inc. v. Smith & Nephew, Inc., No. 18-2140. The CAFC held that the...more

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