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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.  

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Authors

Michael T. Renaud

Member / Chair, Intellectual Property Division

Michael T. Renaud is an intellectual property litigator and patent strategist who helps Mintz clients protect and generate revenue from their patent holdings. Clients rely on Mike's counsel on complex and sensitive licensing agreement negotiations, acquisitions, and other technology transactions.
William A. Meunier is a Mintz attorney who has mastered inter partes review (IPR) proceedings and high-stakes patent litigation. He has helped patent owners achieve success in over 90% of IPRs, compared to the industry average of only 35%. Bill has decades of experience litigating patent cases.
Monique Winters Macek is an Associate whose practice is focused on medical devices, systems, and methods. Before joining Mintz, Monique served as a patent agent. She's registered to practice before the US Patent and Trademark Office.