On October 13, 2020, the U.S. Supreme Court granted three petitions for writ of certiorari related to Arthrex v. Smith & Nephew addressing two issues that will determine the fate of PTAB judges and decisions.  First, did the Federal Circuit correctly decide in Arthrex that PTAB judges are unconstitutionally appointed under the Appointments Clause?  Second, if so, did the Federal Circuit cure this defect by eliminating certain statutory restrictions on the removal of those judges?  The Supreme Court’s answer to this second question may be the most interesting and impactful. 

If the Supreme Court determines that PTAB judges were already constitutionally appointed or that the Federal Circuit has already cured any past constitutional defects, then the impact going forward could be relatively narrow and effect PTAB cases remanded under Arthrex.  As discussed in a recent post, the Federal Circuit has remanded about 100-plus PTAB decisions to the PTAB because they were both decided by unconstitutionally appointed judges (in other words, those decided prior to the Federal Circuit’s Arthrex decision “cured” the Appointments Clause defect) and timely appealed under the Appointments Clause defect. 

If the Supreme Court decides the PTAB judges were unconstitutionally appointed and the Federal Circuit’s Arthrex decision did not already cure this defect, then the impact could be more widespread.  Such a ruling would mean that all PTAB decisions to date were unconstitutional and could open up a floodgate of additional challenges to past, pending, and future PTAB rulings.