PTAB Litigation – The Changing Rules of the Road

January 12, 2022

Contributors: Vince Galluzzo

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The PTAB now has a new review process and broader discretionary denial power—and a solid constitutional foundation for the future

Two decisions have reshaped basic processes at the USPTO’s Patent and Trial Appeal Board (PTAB), but exactly what that will mean is still being worked out.

In one of these cases, Arthrex Inc. v. Smith & Nephew Inc., Arthrex defended its challenged patent by claiming that the structure of the PTAB was unconstitutional. This argument, made at the PTAB and then later before a Federal Circuit panel, claimed that the power of the administrative patent judges (APJs) who oversee inter partes review (IPR) and post-grant review proceedings violated the Appointments Clause of the U.S. Constitution. The unreviewable authority given to those judges, Arthrex said, should be given only to direct appointees of the president.

Read the complete article in the Litigation Forecast 2022.