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Cases Challenging Patent Agency Power Denied Full Court Redos

Aug. 12, 2022, 4:26 PM

The full US Court of Appeals for the Federal Circuit declined to rehear two cases that claim the appeals court improperly gave more power to the US Patent and Trademark Office’s interim director and tribunal.

Both Arthrex Inc. and Atlanta Gas Light Co. separately failed to convince the full court to review the original panel decisions.

Arthrex was challenging the Federal Circuit’s May ruling that confirmed the power of temporary agency heads to review Patent Trial and Appeal Board decisions. Atlanta Gas asked the court to reconsider an unusual split-panel decision that allowed the tribunal to vacate a Federal Circuit opinion.

The Federal Circuit denied both bids Thursday in nonprecedential orders. No explanation was given. Since May 2020, the appeals court has taken only four cases en banc, none of them patent cases.

Arthrex had disputed previous interim director Drew Hirshfeld’s power after he denied director review of its case regarding a surgical device patent. The Federal Circuit found that the scope of the 1998 Federal Vacancies Reform Act is extremely limited, meaning Hirshfeld wasn’t restricted by the law.

Atlanta Gas asked the full court to clarify whether the Federal Circuit had the authority to review the PTAB’s reversal of a decision to probe a rival’s contested patent that the appeals court had already determined was invalid. Because the ruling rested on timeliness considerations and the Federal Circuit can’t review the tribunal’s decisions on whether to review patents, the appeals court said it didn’t have the ability to consider the case again.

Judge Tiffany P. Cunningham didn’t participate in considering whether to review Arthrex’s latest bid.

MoloLamken LLP and Carlson Gaskey & Olds PC represent Arthrex. Wolf, Greenfield & Sacks PC represents Smith & Nephew Inc.

King & Spalding LLP represents Atlanta Gas. LThe aw Offices of Wayne D. Porter, Jr. represents Bennett Regulator Guards Inc.

The cases are Arthrex Inc. v. Smith & Nephew Inc., Fed. Cir., No. 18-2140, rehearing denied 8/11/22 and Atlanta Gas Light Co. v. Bennett Regulator Guards Inc., Fed. Cir., No. 21-1759, rehearing denied 8/11/22.

To contact the reporter on this story: Samantha Handler in Washington at

To contact the editor responsible for this story: Jay-Anne B. Casuga at