Analysis

Justices, Congress Might Tackle PTAB Constitutionality Next

Law360 (March 23, 2020, 9:30 PM EDT) -- The full Federal Circuit's decision Monday not to review a ruling that Patent Trial and Appeal Board judges are unconstitutionally appointed may not be the last word on the issue, attorneys say, with U.S. Supreme Court appeals and congressional action potential next steps.

While the appeals court rejected requests for en banc review of an October panel decision known as Arthrex Inc. v. Smith & Nephew, which held the structure of the PTAB violates the appointments clause of the U.S. Constitution, the case has facets that could catch the eye of both the justices and lawmakers.

Monday's order, over dissents by four judges, leaves...

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