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Patent Office Tribunal Pressing Pause on Arthrex Remands (1)

May 1, 2020, 10:08 PMUpdated: May 1, 2020, 11:06 PM

A Patent and Trademark Office tribunal is holding off on rehearing patent disputes sent back by the Federal Circuit after the court’s ruling on the constitutionality of the tribunal judges’ appointments.

The rehearings should wait until the Supreme Court acts on a petition to hear an appeal of Arthrex, Inc. v. Smith & Nephew, Inc., the Patent Trial and Appeal Board said in an order.

In Arthrex, the U.S. Court of Appeals for the Federal Circuit found in October that PTAB judges had so much authority that they are principal officers who should have been appointed by the president and confirmed by the Senate. The court severed part of the law preventing the judges from being fired without cause, changing their employment status to inferior officers.

The court then vacated and remanded the Arthrex dispute for further proceedings before new, and now constitutionally appointed, patent judges.

The patent office said more than 100 PTAB decisions were vacated due to Arthrex, with more expected, according to the filing by chief PTAB judge Scott Boalick.

“Several parties in Board matters that have been subject to such Orders have informed the Office that they intend to seek review of the pertinent Order by the Supreme Court of the United States,” Boalick wrote.

The PTAB is holding Arthex remands “in administrative abeyance until the Supreme Court acts on a petition for certiorari or the time for filing such petitions expires,” he wrote.

Arthrex Inc., a medical product maker, said in March that it plans to ask the Supreme Court to review the Federal Circuit’s ruling.

(Updated with additional information.)

To contact the reporter on this story: Ian Lopez in Washington at ilopez@bloomberglaw.com

To contact the editors responsible for this story: Roger Yu at ryu@bloombeglaw.com; Keith Perine at kperine@bloomberglaw.com

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