US, Smith & Nephew Urge Justices To Overturn Arthrex

Law360 (November 25, 2020, 7:32 PM EST) -- The Federal Circuit misapplied clear U.S. Supreme Court precedent when finding that administrative patent judges weren't constitutionally appointed, the government and medical tech company Smith & Nephew said Wednesday in their opening salvos for the closely watched Arthrex case.

The U.S. Patent and Trademark Office director and secretary of commerce provide enough supervision over the judges for them to be considered so-called inferior officers under the Constitution's appointments clause, both opening briefs state. The Federal Circuit's finding otherwise relies on a "deeply flawed" application of the high court's Edmond v. United States decision, the government said.

"Instead of assessing the cumulative...

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