Micron and PTO: The Arthrex Window Is Now Shut

A patent owner that could have requested rehearing from the U.S. Patent and Trademark Office after the U.S. Court of Appeals for the Federal Circuit's appointment clause decision has forfeited its chance at a new PTO panel, the tech company argues.

February 24, 2020 at 08:00 PM

4 minute read

Scott Graham

Jared Bobrow(left) and Mel Bostwick(right) of Orrick Herrington & Sutcliffe.

Micron Technology Inc. has opened a new front in the Arthrex v. Smith & Nephew appointment clause wars.

Last fall the U.S. Court of Appeals for the Federal Circuit ruled that the administrative judges of the Patent Trial and Appeal Board weren't constitutionally appointed. In so doing it told dissatisfied litigants that so long as they raised the issue by the time they filed their opening briefs on appeal, they'd be entitled to new hearings before a different panel of PTAB judges.