In this article written for IP Litigator, partner Dion Bregman and associates Maria Doukas and Vishal Parikh discussed the US Court of Appeals for the Federal Circuit decision in Arthrex, Inc. v. Smith & Nephew, Inc., and noted that the grant of certiorari should not be surprising to most patent practitioners.
The authors concluded that if the US Supreme Court ultimately finds that administrative patent judges (APJs) are constitutionally appointed or finds the Federal Circuit’s remedy is sufficient to resolve any constitutional concerns, then the impact of the ruling should be rather narrow and affect only those cases currently held in administrative abeyance. However, they pointed out, should the Court hold that APJs are not constitutionally appointed and no remedy exists, short of congressional intervention, the impact of this decision could potentially be widespread—and open a floodgate of challenges to the constitutionality of any decisions issued by the Patent Trial and Appeal Board.
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