Maier & Maier

Kunin: Arthrex & Click-To-Call Highlight Patent Law Cases in 2020

As 2020 comes to a close, leading IP experts are taking stock of the year that was and its effect on U.S. patent law. Among these expert opinions is Maier & Maier’s own Steve Kunin, who commented on two of the most significant patent cases this year in Arthrex, Inc. v. Smith & Nephew, Inc. and Thryv v. Click-to-Call.

Thryv v. Click-to-Call, 140 S. Ct. 1367 (April 20, 2020)

“The Supreme Court held that a PTAB determination of whether an IPR petition is timely under 35 U.S.C. § 315(b) cannot be judicially reviewed. The Court, in the majority opinion by Justice Ginsburg, held that § 315(b) time bar determinations are not appealable, vacated, and remanded with instructions for the Federal Circuit to dismiss for lack of jurisdiction. This decision reinforced the Congressional intent to provide the USPTO with broad discretion in making AIA trial institution decisions.”

Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019), reh’g denied, 953 F.3d 760 (March 23, 2020

“The Federal Circuit held that USPTO APJs were unconstitutionally appointed under the Appointments Clause. The judges are not “inferior officers” and should have been appointed by the President and confirmed by the Senate. The Court then “fixed” the problem by stripping out the civil servant protections set forth in 5 U.S.C. that prevented the judges from being fired without cause. The case is now before the Supreme Court on certiorari. If the Federal Circuit’s decision is not reversed it will require Congress to enact legislation to correct the problem. The U.S. Government’s position is predicated on the finding that APJs are inferior officers that have been duly appointed.”

As Arthrex is pending before the Supreme court, it may be one of the most influential in 2021 as well. For more commentary on the year in review, see the full article here.

Category: Firm News, Insights