US Court of Appeals for the Federal Circuit finds that administrative patent judges were unconstitutionally appointed in case now the subject of multiple appeals to the US Supreme Court

Abstract On 31 October 2020, a three-judge panel of the US Court of Appeals for the Federal Circuit (‘Federal Circuit’) issued a decision in Arthrex, Inc v Smith & Nephew, Inc finding that administrative patent judges of the Patent Trial and Appeal Board were appointed in violation of the Appointments Clause of the US Constitution and instituting measures to remedy the situation. On 23 March 2020, the Federal Circuit refused to the rehear the case sitting en banc. Since then, the panel decision has become the subject of multiple appeals to the US Supreme Court. We expect to learn in early autumn whether the US Supreme Court decides to grant certiorari with respect to any of the appeals and review this important decision.