Federal Circuit Expands Arthrex To Ex Parte Appeals From Original Prosecution
On July 7, 2020, the United States Court of Appeals for the Federal Circuit (“CAFC”) issued an Order on Motion vacating and remanding the underlying decisions in ex parte appeals of the Patent Trial and Appeal Board (“PTAB”) of the U.S. Patent and Trademark Office (“USPTO”) affirming the examiner’s rejection of patent application claims. In re Boloro Global Ltd., No. 2019-2349 (Fed. Cir. July 7, 2020). In doing so, the CAFC applied the reasoning from its decisions in Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019) and VirnetX Inc. v. Cisco Sys., Inc., No. 2019-1671, 2020 WL 2462797 (Fed. Cir. May 13, 2020), which held that administrative patent judges (“APJs”) were “principal officers” and not constitutionally appointed at the time the PTAB issued its final decisions in the underlying inter partes review and re-exam proceedings, respectively.