IPR Petitioners Ineligible For Arthrex Relief

On May 5, 2020 the Federal Circuit formally barred petitioners from seeking Arthrex remands. The Court issued a precedential order clarifying that only qualifying patent owners may seek the Arthrex remedy. Petitioners, unlike patent owners, chose the PTAB as a forum for their claims and must consequently live with the outcome.

As detailed previously, the Federal Circuit issued its Arthrex decision on October 31, 2019, finding that the PTAB's APJs were appointed in violation of the Appointments Clause and applying a prospective judicial fix to the underlying statutes. The Court previously denied rehearing and rehearing en banc in Arthrex-with multiple opinions discussing the implications and limits of the Court's decision. In particular, Judge Moore discussed the limits of Arthrex in detail in her concurrence for the rehearing denial. However, the Court left open the question whether petitioners, those who seek relief from the PTAB, were also entitled to vacatur