Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report includes a post on PatentlyO by Professor Arti K. Rai on the Federal Circuit’s Arthrex decision, additional commentary at IPWatchdog from a panel of IP experts on the impact of Arthrex, and a New York Times article on the Supreme Court’s rejection of Time Warner’s petition for certiorari.
At PatentlyO, Professor Arti K. Rai commented on the Federal Circuit’s ruling in Arthrex v. Smith & Nephew. As explained by Rai, the court “held that the administrative patent judges (APJs) at the PTAB are ‘principal officers’ who must, under the Appointments Clause of the Constitution, be appointed by the President and confirmed by the Senate.” Rai noted that while “the panel did a careful job of addressing one of the most knotty constitutional issues raised by PTAB adjudication . . . the panel’s decision is unlikely to represent the last step in the road.” Rai pointed out that “[a]t the Supreme Court, administrative law has long been a battlefield between various flavors of formalist and functionalist reasoning about how agencies fit into the executive branch and interact with the legislative and judicial branches.” While she did not have a prediction as to how the Supreme Court might rule in this dispute, she thinks “[t]he cleanest path forward is . . . surgical Congressional intervention that gives the Director an explicit, unilateral right of review.”
IPWatchdog highlighted commentary on the Arthrex decision by a panel of speakers at a conference hosted by John Marshall Law School in Chicago. According to IPWatchdog, “panelists suggested that the [USPTO] would not be significantly burdened by the decision.” One panelist suggested that “[o]nce the ‘Arthrex window’ cases have moved through the system, the PTAB practice should remain essentially unchanged, both substantively and procedurally.” Another argued that “this is a significant decision for all patent owners with pending cases before the PTAB or on appeal to the Federal Circuit,” and noted that “[i]t is imperative that every patent owner challenge the constitutionality of the panel rendering the decision under the Appointments Clause, otherwise the argument is waived.” (We previously reported on news related to the oral arguments in the Arthex case, Thursday’s decision, and Friday’s orders in other cases impacted by the Arthex decision.)
In other news, Andrew Chung reported for the New York Times on the Supreme Court’s “refus[al] to hear Time Warner’s appeal in Time Warner Cable, Inc. v. Sprint Communications Co. As explained by Chung, “Sprint’s 2011 lawsuit against Time Warner said the cable company’s Voice over Internet Protocol (VoIP) service, which relays calls over the internet, infringed several of Sprint’s patents on connecting users of older and more modern telephone technologies.” The Federal Circuit upheld a 2017 verdict by a federal jury awarding Sprint “nearly $140 million in royalties, to which a judge later added about $6 million in interest,” and Time Warner had petitioned for certiorari. Chung noted that “Chief Justice John Roberts did not participate in the decision to reject the case, likely because he reported having shares in Charter Communications in his last financial statement.” (We previously noted the denial of the petition for certiorari on this blog.)