Cert Petitions Pursue Takings Clause Argument
Last week, Arthrex filed a petition for certiorari
challenging the holding of the Federal Circuit that its
Appointments Clause challenge was forfeited. (a companion case to
the one that has received all of the notoriety). In its first
petition for certiorari, Arthrex also pursues a different
constitutional issue based on the Takings Clause of the Fifth
Amendment, like other recent filers.
I expect this argument to soon be added to the list of failed
constitutional challenges to the PTAB.
The first question presented in the Arthrex petition is framed
as follows (here):
(1) Whether the retroactive application of inter partes
review to patents that were applied for before the America Invents
Act violates the Fifth Amendment.
