On Oct. 31, 2019, the U.S. Court of Appeals for the Federal Circuit issued a shocking decision in which a three-judge panel found that administrative patent judges (APJs) for the Patent Trial and Appeal Boards (PTAB) were appointed in violation of the Appointments Clause of the U.S. Constitution, U.S. Const., art. II, §2, cl. 2. Arthrex v. Smith & Nephew, No. 2018-2140, slip op. (Fed. Cir. Oct. 31, 2019). Arthrex, involving the constitutionality of the appointment process used for PTAB APJs, is no doubt the most controversial decision in patent law for the past year. Although other Federal Circuit panels have been following Arthrex’s decision to vacate and remand decisions of the PTAB currently under appeal, it has been questioned not just by the parties and the government in pending en banc petitions to the full court, but also by numerous Judges of the Federal Circuit in concurring decisions.
The U.S. Supreme Court has already been called to action and denied a party’s application to stay the Federal Circuit’s mandate while it files a petition for certiorari arguing that Arthrex’s “significant change of law should be applied to all pending appeals.” Sanofi-Aventis Deutschland GmbH v. Mylan Pharms., No. 19A886, Order (U.S. Feb. 14, 2020).
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