Vacatur and Remand Is Not for Everyone

Customedia Tech., LLC v. Dish Network Corp.., Appeal Nos. 2018-2239, -2240, -2310, 2019-1000, -1001, -1002, -1027 and -1029 (Fed. Cir., Nov. 1, 2019).

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John P. Isacson

The day after the Federal Circuit issued its decision in Arthrex, Inc. v. Smith & Nephew, Inc., Appeal No. 2018-2140 (Fed. Cir., Oct. 31, 2019), the Federal Circuit issued a pair of precedential orders in appeals of inter partes reviews and covered business method reviews.  Appellant Customedia Tech sought to avail itself of the Arthrex decision to have adverse decisions vacated on the grounds that the Patent Trial and Appeals Board was constituted in a manner that violated the Appointments Clause of the U.S. Constitution.

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The PTAB and the Constitution

Arthrex, Inc. v. Smith & Nephew, Inc., Appeal No. 2018-2140 (Fed. Cir., October 31, 2019)

Photo of John P. Isacson
John P. Isacson

Since the inception of inter partes review at the Patent Trial and Appeals Board (PTAB), there have been a number of constitutional challenges to these type of proceedings.  This latest challenge concerned the very formation of the PTAB itself.

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