Arthrex, Inc. v. Mith & Nephew, Inc., 2018-2140 (Fed. Cir. 5/27/2022).
RICK NEIFELD
The Federal Circuit held that the Commissioner for Patents had the authority to deny Arthrex's request for Director rehearing, notwithstanding the Appointments Claus; the Federal Vacancies Reform Act; and the Constitution’s separation of powers. Here are the highlights.
In sum, Arthrex’s Appointments Clause challenge runs headlong into Eaton and the Supreme Court’s prior decision in this case. We therefore conclude that the Commissioner’s exercise of the Director’s authority while that office was vacant did not violate the Appointments Clause. [Arthrex, Inc. v. Mith & Nephew, Inc., 2018-2140 (Fed. Cir. 5/27/2022).]
The FVRA does not restrict who may perform the delegable functions and duties of an absent PAS officer. And the Director’s authority to decide requests for rehearing Board decisions is delegable. [Arthrex, Inc. v. Mith & Nephew, Inc., 2018-2140 (Fed. Cir. 5/27/2022).]
Because the President has unfettered power under the FVRA to strip the Commissioner of his temporary PAS-officer authority, the Commissioner’s exercise of that authority does not violate the Constitution’s separation of powers. [Arthrex, Inc. v. Mith & Nephew, Inc., 2018-2140 (Fed. Cir. 5/27/2022).]
Best regards, Rick Neifeld, Ph.D., Patent Attorney
Neifeld IP Law PLLC
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