Polaris Innovations Limited presents the following questions: 1. “Whether severance of the tenure protections for Administrative Patent Judges (‘APJs’) was not available to the Arthrex panel to remedy the violation of the Appointments Clause by the IPR statute, 35 U.S.C. § 311 et seq, because Congress would not have denied APJs such protection.” 2. “Whether the Arthrex decision’s removal of APJ tenure protections is insufficient to cure the violation of the Appointments Clause by the IPR statute.” 3. “Whether it was proper for the panel to remand this matter for new proceedings before a three-judge panel of non-tenured APJs whose appointment continues to violate the Appointments Clause.” 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.” Kingston Technology Co. presents the following questions: 1. “Whether APJs are inferior officers under the statutory scheme enacted by Congress, without their removal protection stripped; and” 2. “Assuming removal protection must be stricken from the statute to render APJs inferior officers, whether Board decisions must be remanded to be reheard by a new panel.”
