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ARTICLE · 29 MAY 2020

Arthrex Extended To Inter Partes Re-examination

McDermott Will & Emery
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The US Court of Appeals for the Federal Circuit denied a petition for panel rehearing regarding the constitutionality of decisions issued by the United States Patent and Trademark Office..

United StatesIntellectual Property
Brian Jones
Brian Jones
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The US Court of Appeals for the Federal Circuit denied a petition for panel rehearing regarding the constitutionality of decisions issued by the United States Patent and Trademark Office (USPTO) Patent Trial and Appeal Board (PTAB), holding that its decision in Arthrex, Inc. v. Smith & Nephew, Inc. (IP Update, Vol. 22, No. 11) also applies to final decisions issued by administrative patent judges (APJs) in inter partes re-examinations. Virnetx v. Cisco Systems, Inc., Case No. 19-1671 (Fed. Cir. May 13, 2020) (O'Malley, J.). The Court also denied (per curiam) a concurrently filed petition for rehearing en banc.

Arthrex had addressed-in the context of inter partes review (IPR) proceedings-whether APJs had been appointed unconstitutionally by the director of the USPTO, where the director did not have unfettered discretion to remove an APJ. As a result, the Federal Circuit partially invalidated the statutory removal protections of the America Invents Act (AIA)

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