Spotlight On Upcoming Oral Arguments – November 2017

Monday, November 6, 2017

Arthrex, Inc. v. Smith & Nephew, Inc., No. 17-1239, Courtroom 402

In this appeal, the Federal Circuit will consider whether it has jurisdiction to review a PTAB decision to terminate an IPR and enter an adverse judgment against the patent owner.  Arthrex argues that the Court has jurisdiction because the PTAB's decision to enter an adverse judgment and terminate the IPR constituted a "decision" that is appealable under 28 U.S.C. § 1295(a)(4).  Alternatively, Arthrex argues that the PTAB's decision constitutes a "final agency action" that is reviewable under the Administrative Procedure Act.  Smith & Nephew argues that the APA does not permit judicial review of final agency actions when another statute bars judicial review.  Thus, Smith & Nephew argues that the Court does not have jurisdiction to hear Arthrex's appeal because its jurisdiction is limited to review of final written decisions under the AIA.