Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights a discussion of an oral argument addressing the constitutionality of the appointment of the judges of the Patent Trial and Appeal Board, an article on the Federal Circuit’s rejection of a challenge by Google to a patent related to encoding audio signals, and a note on a recent petition for en banc rehearing.

At 717 Madison Place, Bill Vobach discussed the oral argument in Arthrex, Inc. v. Smith & Nephew, Inc., heard by the Federal Circuit on October 1, in which “a panel of Judges Moore, Chen, and Reyna expressed significant interest in an argument addressing whether PTAB judges were constitutionally appointed.” Vobach notes that “the argument being asserted is that PTAB judges are authorized by the AIA to issue final written decisions in IPR’s (and other proceedings) and therefore need to be ‘Principal Officers.'” Vobach highlights a number of interesting soundbites from the arguments. Vobach followed up with a related post questioning “how the judicial oath/affirmation factors into the determination of whether a PTAB judge is directed and supervised by a superior officer.” Notably, Arthrex recently filed an en banc petition in another case between the two parties after the Federal Circuit rejected arguments that inter partes review is unconstitutional when applied retroactively to patent applications filed and published prior to the America Invents Act.

Blake Brittain of Bloomberg News reported on the Federal Circuit’s decision in Google LLC v. Koninklijke Philips N.V. rejecting Google’s challenge to Philips’s patent related to encoding audio signals. According to Brittain, “Google argued the patent claims were disclosed in an earlier patent application for a transmitter that filters out high frequencies and ‘reflects’ the low frequencies to the high-frequency band,” but the PTAB and the Federal Circuit “found the application didn’t invalidate the claims.”

IPWatchdog’s Eileen McDermott highlighted a recent petition for en banc rehearing filed by the Chamberlain Group, Inc. in The Chamberlain Group, Inc. v. Techtronic Industries Co. McDermott explains that the petition asks “an en banc panel of the Federal Circuit to reconsider its August 21 precedential decision, which in part reversed a district court’s finding that certain claims of Chamberlain’s patent for a ‘moveable barrier operator’ (for example, a garage door opener) were not abstract under Section 101.” The petition argues that the Federal Circuit panel “overstepped the proper role of an appellate court and . . . changed the subject of the inventive concept test under Alice step 2.”