The Federal Circuit declined to rehear en banc its October decision, in Arthrex Inc. v. Smith & Nephew, that Patent Trial and Appeal Board administrative patent judges were unconstitutionally appointed.
The National Law Journal and Law360 include remarks from IP litigation partner Matt Rizzolo (Washington, D.C.) that a petition for certiorari to the U.S. Supreme Court is likely, and even congressional action is possible. Matt explains that the case involves an issue—the distinction between ‘principal’ and ‘inferior’ officers under the Appointments Clause—that impacts administrative law more broadly than a typical patent case, and thus may attract attention from the high court.
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