The U.S. Supreme Court has granted certiorari in Arthrex v. Smith & Nephew to review the Federal Circuit's decision regarding the constitutionality of the appointment of USPTO Patent Trial and Appeal Board (PTAB) judges.
Read our analysis published by Law360 on the five things practitioners and litigants should know as the Supreme Court considers this case.
- The Court will review both the merits of the constitutional issue and the propriety of the Federal Circuit’s remedy.
- The Court will not review the issue of whether Arthrex forfeited its Appointments Clause challenge by raising it for the first time in the court of appeals.
- Cases remanded to the Board following Arthrex will likely remain stayed, and several pending petitions on the Appointments Clause issue will likely be held pending the Court’s disposition of Arthrex.
- Arthrex will present the Supreme Court with an opportunity to clarify the line between “principal” and “inferior” officers.
- The disposition of Arthrex will not necessarily affect the constitutionality of other administrative adjudication regimes.