Judge Dyk and Judge Newman disagree with the Arthrex
remedy requiring rehearing. In Arthrex, the Federal
Circuit panel of Judges Moore, Reyna, and Chen held the appointment
of Administrative Patent Judges (APJs) was an unconstitutional
violation of the Appointments Clause (U.S. Const. art. II, §
2, cl. 2.), severed a portion of the Patent Act to cure the
unconstitutionality, and remanded the case for hearing before a new
panel of constitutionally appointed APJs. Arthrex, Inc. v.
Smith & Nephew, Inc., et al., No. 18-2140 (Fed. Cir.
2019). Last Thursday, The Federal Circuit applied Arthrex
to vacate and remand three inter partes review (IPR)
decisions by the Patent Trial and Appeal Board (PTAB). Bedgear, LLC v.
Fredman Bros. Furniture Company, Inc., No. 18-2082 (Fed.
Cir. 2019). In Bedgear, Judge Dyk, joined by Judge Newman,
concurred in the judgement and wrote separately to dispute the
remand and rehearing remedy in Arthrex.
