Rust-Oleum’s Questions Presented: 1. “Whether this Court erred by vacating and remanding this case based on an Appointments Clause challenge[] raised for the first time in a single pre-briefing motion before this Court.” 2. “Whether this Court erred by holding that APJs are principal officers under the Appointments Clause.” 3. “Whether this Court erred by holding that the appropriate remedy in a case like this one is to vacate and remand the PTAB’s Final Written Decision.”
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.”
