Federal Circuit Reluctantly Applies Arthrex Decision

On January 31, 2020, the Federal Circuit vacated and remanded a Patent Trial and Appeal Board ("PTAB") final written decision in view of Arthrex, but did so reluctantly because it disagreed with the merits and questioned the remedy of the Arthrex panel decision.

On appeal to the Federal Circuit, Polaris Innovations Limited argued that the PTAB's final written decision in IPR 2016-01621 exceeded the scope of the PTAB's authority and violates the Constitution's Appointments Clause. The Federal Circuit noted this issue was already decided in Arthrex, which held that Administrative Patent Judges ("APJ") had been improperly serving as principal officers (who must be appointed by the President and confirmed by the Senate), since they did not have enough supervision from the USPTO's director to be considered inferior officers (who can be appointed by heads of departments).