The government presents the following questions: 1. “This case presents the same three questions presented in Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019), in which all parties have petitioned for en banc review:” A. “Whether the administrative patent judges of the Patent Trial and Appeal Board are inferior officers of the United States under the Appointments Clause, U.S. Const. art. II, § 2, cl. 2, such that Congress permissibly vested their appointments in a department head, rather than principal officers of the United States who must be nominated by the President and confirmed by the Senate.” B. “Whether this Court should entertain an Appointments Clause challenge a litigant forfeited by failing to raise it before the agency.” C. “How to remedy any Appointments Clause defect in the Patent Trial and Appeal Board.” 2. “Whether the Arthrex panel’s decision to excuse a challenger’s forfeiture of an Appointments Clause challenge applies automatically to excuse forfeiture in future cases, or whether this Court’s ordinary forfeiture rules apply.”
Incyte Corporation presents the following questions: 1. “Whether the appointment of Administrative Patent Judges (APJs) to the Patent Trial and Appeal Board (PTAB) violated the Appointments Clause of the U.S. Constitution, U.S. Const., Art 2, § 2, cl. 2, as the panel in Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019), concluded.” 2. “What appropriate judicial remedy, if any, can be fashioned to ameliorate such a constitutional violation of the Appointments Clause, if found.” 3. “Whether this Court should entertain an Appointments Clause challenge that a litigant forfeited by failing to raise it before the agency.” 4. “Whether the Arthrex panel’s decision to excuse a challenger’s forfeiture of an Appointments Clause challenge applies automatically to excuse forfeiture in future cases, or whether this Court’s ordinary forfeiture rules apply.”
