Moderna Can’t Get New Patent Validity Review Under Arthrex

May 19, 2020, 11:44 PM

Moderna Therapeutics Inc. failed to get a new hearing of an unfavorable decision at the Patent Trial and Appeal Board from the Federal Circuit Tuesday, after arguing that the tribunal’s judges were unconstitutionally appointed.

The Federal Circuit reiterated in a nonprecedential opinion that, under its controversial decision in Arthrex Inc. v. Smith & Nephew Inc., the challenger of a patent’s validity at the PTAB is barred from arguing the judges’ appointments were unconstitutional because the challenger “affirmatively sought a ruling from the Board members, regardless of how they were appointed.”

Moderna challenged the validity of two Protiva Biotherapeutics Inc. ...

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