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ARTICLE · 03 FEBRUARY 2020

No Arthrex Relief For Failed PTAB Petitioners

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While we await the en banc determination in Arthrex/Polaris, there have been a number of recent remands back to the PTAB (i.e., where the...

United StatesIntellectual Property

CAFC Holds Petitioner to PTAB Choice

While we await the en banc determination in Arthrex/Polaris, there have been a number of recent remands back to the PTAB (i.e., where the Appointments Clause issue was first raised in the opening appellate brief). Given this, it may be that the Federal Circuit remains unimpressed with the government's argument that failure to raise the issue before the PTAB results in forfeiture of the argument. Still, given the supplemental briefing in Polaris as to the sufficiency of the Arthrex remedy, I am still expecting that at least this aspect of the debate is taken up en banc.

In the meantime, the Federal Circuit has made clear that the Appointments Clause issue will not benefit failed PTAB petitioners.

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