No Easy Arthrex Fix as Full-Court Review Looms, Attorneys Say

The whirlwind of activity set off by a Federal Circuit finding that administrative patent judges were unconstitutionally appointed suggests a full-court rehearing is all but certain—even if a resolution isn’t clear, attorneys say.

The Oct. 31 ruling has sparked a congressional hearing, prompted concern from other Federal Circuit judges, and launched a run of constitutional challenges to overturn U.S. Patent and Trademark Office decisions. At least two constitutional challenges have succeeded in wiping out rulings from the agency’s Patent Trial and Appeal Board, a tribunal favored by pharmaceutical and big tech companies in countering infringement lawsuits.

Arthrex v. Smith & ...