Federal Circuit Holds PTAB Judges Unconstitutional, Constructs a Fix—But Not All Judges Agree on What Happens Next (January 2020)

On Oct. 31, 2019, a Federal Circuit panel of Judges Moore, Reyna, and Chen issued a decision in Arthrex, Inc. v. Smith & Nephew, Inc., No. 2018-2140 (Fed. Cir. 2019), holding that the appointment of the Administrative Patent Judges (APJs) of the Patent Trial and Appeals Board (the Board) violates the U.S. Constitution. To remedy the unconstitutional appointments, the panel constructed a remedy by severing a portion of the Patent Act that restricted the removal grounds of APJs. With an en banc decision on the horizon and disagreement between the Federal Circuit judges on the proper remedy, this case may be far from over.

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