What SCOTUS’ Decision in Arthrex Means for the PTAB Going Forward

What SCOTUS’ Decision in Arthrex Means for the PTAB Going Forward

Speaking Engagement

On June 21, 2021, the US Supreme Court issued its eagerly awaited decision in Arthrex, Inc. v. Smith & Nephew, Inc., No. 19-1434. Two questions were before the Court. First, are Administrative Patent Judges (APJs) “principal officers” who must be appointed by the President and confirmed by the Senate under the Appointments Clause of the US Constitution? Second, if APJs are principal officers, what remedy should be adopted?

The Supreme Court held that APJs are principal officers. But the Supreme Court disagreed with the remedy adopted by the Federal Circuit, which had severed restrictions on removing APJs from their positions. Instead, the Supreme Court struck down restrictions on the Director’s authority to unilaterally review final decisions of the Patent Trial and Appeal Board (PTAB).

In this WilmerHale webinar, Partners David Cavanaugh, Nora Passamaneck and Tom Saunders analyzed the Supreme Court decision in Arthrex and discussed key implications. The webinar discussed:

  • the Supreme Court’s reasoning;
  • questions left open by the decision;
  • next steps for petitioners and patent owners at all stages of proceedings;
  • the implications of the forfeiture analysis in Carr v. Saul, another Appointments Clause case decided this term;
  • potential congressional action; and
  • the long-term implications for the PTAB.

View the Webinar Recording*

*CLE credit is not available for those who watch webinar recordings.

Read More About the Event



Unless you are an existing client, before communicating with WilmerHale by e-mail (or otherwise), please read the Disclaimer referenced by this link.(The Disclaimer is also accessible from the opening of this website). As noted therein, until you have received from us a written statement that we represent you in a particular manner (an "engagement letter") you should not send to us any confidential information about any such matter. After we have undertaken representation of you concerning a matter, you will be our client, and we may thereafter exchange confidential information freely.

Thank you for your interest in WilmerHale.