On March 23, 2020, the Federal Circuit issued a per
curiam order denying rehearing and rehearing en banc in
Arthrex. See Arthrex, Inc. v. Smith &
Nephew, Inc., No. 18-2140, Order Denying Rehearing and
Rehearing En Banc, Dkt. 115. We have discussed this most recent
development in the Arthrex case in our earlier posts this
week: BREAKING: Arthrex
Rehearing Denied, Arthrex en banc Denied
– The Big Picture , and Judges Disagree on
Arthrex, But Rehearing Vote Fails.
The Federal
Circuit's per curiam order is accompanied by five
separate opinions: two concurrences and three dissents. Judge
Moore wrote the first concurrence which was joined by Judges
O'Malley, Reyna, and Chen.
Judge Moore's concurrence started from the Arthrex
panel's conclusion that that the PTAB's administrative
patent judges (APJs) were improperly appointed principal officers,
and defended the thesis that the proper fix for constitutional
issue was to "sever[] any problematic portions while
