October 26, 2020

Volume X, Number 300

Advertisement

October 26, 2020

Subscribe to Latest Legal News and Analysis

October 23, 2020

Subscribe to Latest Legal News and Analysis

Fate of PTAB Judges and Decisions Now in Hands of Supreme Court

On October 13, 2020, the U.S. Supreme Court granted three petitions for writ of certiorari related to Arthrex v. Smith & Nephew addressing two issues that will determine the fate of PTAB judges and decisions.  First, did the Federal Circuit correctly decide in Arthrex that PTAB judges are unconstitutionally appointed under the Appointments Clause?  Second, if so, did the Federal Circuit cure this defect by eliminating certain statutory restrictions on the removal of those judges?  The Supreme Court’s answer to this second question may be the most interesting and impactful. 

If the Supreme Court determines that PTAB judges were already constitutionally appointed or that the Federal Circuit has already cured any past constitutional defects, then the impact going forward could be relatively narrow and effect PTAB cases remanded under Arthrex.  As discussed in a recent post, the Federal Circuit has remanded about 100-plus PTAB decisions to the PTAB because they were both decided by unconstitutionally appointed judges (in other words, those decided prior to the Federal Circuit’s Arthrex decision “cured” the Appointments Clause defect) and timely appealed under the Appointments Clause defect. 

If the Supreme Court decides the PTAB judges were unconstitutionally appointed and the Federal Circuit’s Arthrex decision did not already cure this defect, then the impact could be more widespread.  Such a ruling would mean that all PTAB decisions to date were unconstitutional and could open up a floodgate of additional challenges to past, pending, and future PTAB rulings.  

©1994-2020 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume X, Number 289
Advertisement

TRENDING LEGAL ANALYSIS

Advertisement
Advertisement

About this Author

Michael Renaud IP Litgation Attorney Mintz Levin
Member / Chair, Intellectual Property Division

Michael is a highly regarded intellectual property litigator and patent strategist who helps clients protect and generate revenue from their patent holdings. Intellectual Asset Magazine has repeatedly recognized him in its select IAM Patent 1000 and IAM Patent Strategy 300 publications. Clients rely on his counsel regarding sensitive licensing agreement negotiations, acquisitions, and other technology transactions. He leads a team known for its ability to translate complex technology and its value to non-technical professionals — in court and business negotiations.

Michael is...

617-348-1870
William A. Meunier, Mintz Levin, Patent Litigation Lawyer, Biotech Attorney
Member

Bill focuses his practice on all aspects of intellectual property litigation, with a particular emphasis on patent infringement matters and other disputes related to the enforcement of intellectual property rights. He has litigated intellectual property cases in District Courts throughout the United States, including the Eastern District of Virginia, Northern and Southern Districts of California, Eastern District of Texas, District of Massachusetts, District of Delaware, Northern District of Ohio, and Middle District of North Carolina.

With more than 18 years of experience, Bill counsels clients in all phases of patent litigation, from initial counseling through trial and appeal. He has extensive experience leading litigation teams to resolve patent infringement disputes in a diverse array of technology areas such as internet services and systems; computer hardware and software; mobile systems and applications; medical devices and services; biotechnology; mechanical devices and manufacturing; sports equipment; and toys and novelties. In addition, his practice encompasses representing clients in cases involving copyrights, trademarks, trade secrets, unfair competition, and patent-related antitrust issues.

617.348.1845
Monique Winters Macek, Health, Medical Devices Lawyer, Mintz Levin, Patent Prosecution & Strategic Counseling Patent Opinions Patent Portfolio Strategy Patent Prosecution
Associate

Monique’s practice is focused on the areas of medical devices, systems, and methods.

Prior to joining Mintz Levin, Monique served as a patent agent for Grant Anderson, LLP; Tandem Diabetes Care, Inc.; and NuVasive, Inc. In these roles she participated in all aspects of patent applications and collaborated on patent strategy development and analysis. She has also worked as a patent agent and bio-mechanical engineer for Flex Partners, Inc. Her engineering work also revolved around medical devices such as cardiac ablation catheters, eye sensor...

858.314.1542
Advertisement
Advertisement