Posts Tagged: "Arthrex v. Smith & Nephew"

CAFC: TTAB Never Had a Pre-Arthrex Appointments Clause Issue

On September 1, the United States Court of Appeals for the Federal Circuit (CAFC) affirmed the Trademark Trial and Appeal Board’s (TTAB’s) cancellation of a trademark owned by Sweet 16 Musical Properties (Sweet 16), concluding that there is no Appointments Clause issue with the TTAB…. On appeal, Sweet 16 raised a constitutional challenge to the composition of the TTAB panel that decided their case. Sweet 16 argued that the administrative trademark judges (ATJs) who sat on the panel were appointed in violation of the Appointments Clause of Article II of the U.S. Constitution, and therefore the TTAB’s decision must be vacated. The acting Director of the USPTO, as intervenor, asserted that the ATJs were appointed lawfully.

A Guide to Arthrex: Activity Heats Up in Petitions Pending with Supreme Court

The Supreme Court is currently considering several pleas to review the holding in Arthrex v. Smith & Nephew I and Arthrex v. Smith & Nephew II in the form of four petitions for writs of certiorari: U.S. v Arthrex, No. 19-1434, Smith & Nephew v. Arthrex, No. 19-1452, Arthrex v. Smith & Nephew, No. 19-1458, and Arthrex v. Smith & Nephew, No. 19-1204.  Recently, there has been an uptick in activity in the various cases, with Arthrex most recently filing response briefs in two cases and amicus brief filed by Askeladden LLC and the New York Intellectual Property Law Association (NYIPLA) in U.S. v Arthrex.

It Matters: A Former Administrative Patent Judge’s Take on Arthrex

As most of us know by now, in Arthrex, Inc. v. Smith & Nephew, Inc., entered on Halloween 2019, a panel of the Federal Circuit held that the administrative patent judges (APJs) of the Patent Trial and Appeal Board (PTAB) were improperly appointed, and remanded the case for a new decision by a properly appointed panel. Almost immediately after, the court entered two orders dismissing motions for remand because the issue had not been timely raised. See Customedia Technologies, LLC v. Dish Network Corp., Nos. 18-2239 & 19-1001 (Fed. Cir., Nov. 1, 2019) (the motions were inferred from letters to the court). The Federal Circuit remanded a case in which the issue had been timely raised. Uniloc 2017 LLC v. Facebook, Inc., No. 18-2251 (Fed. Cir., Oct. 31, 2019). Predictions about the effect on pending cases overlook that the vast majority of PTAB final decisions come in appeals from the patent examining corps. Any of the hundreds of applicants dissatisfied with a recent PTAB appeal decision could appeal to the Federal Circuit and then promptly move for remand to a different panel. A reader could be forgiven for feeling a sense of déjà vu: in In re DBC, the Federal Circuit similarly found that APJs had been improperly appointed, but the issue was quickly resolved and now is remembered as a minor footnote in patent case law. In re DBC, 545 F.3d 1373 (Fed. Cir. 2008). Arthrex holds the potential to be far more significant. Indeed, Arthrex may prove more trick than treat.

Constitutional Law Scholars Weigh in on Arthrex

The Arthrex decision caused considerable confusion and excitement among the patent bar last week, partly because the issue decided by the Federal Circuit was a constitutional, and not a patent one. While we await next steps from the parties and the USPTO, IPWatchdog spoke to several constitutional law experts to get their take on the significance of the decision and the likelihood that the Supreme Court would be interested in the issue if appealed. All agreed that the Federal Circuit’s reasoning was correct, though one thought the Court’s approach to deciding that administrative patent judges (APJs) are inferior officers was slightly “unusual” in its focus strictly on the issue of “supervision” over other factors that the Supreme Court has found to be relevant to the distinction between inferior and principal officers. IPWatchdog posed three questions to the experts based on some of the issues that have been raised since Arthrex.