Fed. Cir. Judges Question Parts of PTAB Appointment Decision (1)

Federal Circuit Judge Timothy B. Dyk said new Patent Trial and Appeal Board hearings shouldn’t be required after the court decided that PTAB judges were appointed unconstitutionally.

The court’s decision in Arthrex Inc. v. Smith & Nephew Inc. “imposes large and unnecessary burdens on the system of inter partes review, requiring potentially hundreds of new proceedings, and involves unconstitutional prospective decision-making,” Dyk wrote Nov. 7 in a concurrence with a decision granting bedding company Bedgear’s request to cancel several PTAB decisions.

Bedgear, in its opening brief with the Federal Circuit, argued that the PTAB’s decisions violated the Appointments Clause and ...