ARTHREX, INC. v. SMITH & NEPHEW, INC.
- Oct 31 2019 |
- Category: CAFC Updates
Arthrex appeals from the final written decision of the Patent Trial and Appeal Board holding certain claims of U.S. Patent No. 9,179,907 relating to a knotless suture securing assembly unpatentable as anticipated. Arthrex appeals this decision and contends that the appointment of the Board’s Administrative Patent Judges (“APJs”) by the Secretary of Commerce, as currently set forth in Title 35, violates the Appointments Clause, U.S. Const., art. II, § 2, cl. 2. The CAFC agrees and concludes that the statute as currently constructed makes the APJs principal officers. To remedy the violation, the CAFC follows the Supreme Court’s guidance that when confronting a constitutional flaw in a statute, a Court should try to limit the solution to the problem, severing any problematic portions while leaving the remainder intact. The CAFC concludes that severing the portion of the Patent Act restricting removal of the APJs is sufficient to render the APJs inferior officers and remedy the constitutional appointment problem. As the final written decision on appeal issued while there was an Appointments Clause violation, the CAFC vacates and remands.