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Appointments Clause Challenges After Arthrex Decision Must Have Been Raised in Opening Brief or Preceding Motions

| Nicole R. Townes

CUSTOMEDIA TECHNOLOGIES, LLC V. DISH NETWORK CORPORATION

Per Curiam Orders. Appeals from the Patent Trial and Appeal Board.

Summary: The Federal Circuit’s recent decision in Arthrex finding that Administrative Patent Judges’ (APJs) appointments violated the Appointments Clause is not a basis to vacate and remand a Patent Trial and Appeal (PTAB) decision, unless the party raised an Appointments Clause challenge in the opening brief or preceding motions.

Appellant Customedia in two appeals of PTAB decisions submitted notices of supplemental authority identifying the Court’s recent decision in Arthrex Inc. v. Smith & Nephew, Inc. In Arthrex, the Court vacated and remanded the Board’s decision and ordered the case to be decided by a new panel of APJs at the PTAB because the APJs’ appointments violated the Appointments Clause.  Customedia’s notice of supplemental authority sought to assert the same challenge and the Court construed the notices as motions to vacate and remand. However, because Customedia had not raised “any semblance” of an Appointments Clause challenge in its opening briefs or any preceding motions, the court held that such an argument had been forfeited. Accordingly, the court denied the motions to vacate and remand.

Editor: Paul Stewart