Director Iancu’s Questions Presented: 1. “This case presents the same three questions presented in Arthrex . . . 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.”
Sanofi Pasteur’s Questions Presented: 1. “Whether Administrative Patent Judges (‘APJs’) of the Patent Trial and Appeal Board (‘PTAB’) are inferior or principal officers of the United States.” 2. “If APJs are principal officers, what remedy, if any, is warranted for any defect in their appointment.”
Merck Sharp’s Question Presented: “Whether the Administrative Patent Judges of the Patent Trial and Appeal Board were appointed in violation of the Constitution, when such a constitutional challenge must be raised, and what the proper remedy for any violation is.”
