On January 3, 2021, Ha Kung Wong was quoted in Law360 on high-profile patent cases to watch in 2021, including U.S. v. Arthrex Inc. According to the article, no case looms larger on the 2021 patent landscape than the U.S. Supreme Court's review of a Federal Circuit ruling that Patent Trial and Appeal Board (PTAB) judges are unconstitutionally appointed.
The appeals court held in 2019 that PTAB judges did not have adequate oversight from the director of the U.S. Patent and Trademark Office (USPTO). It stripped them of employment protections so they can be more easily fired, saying that solved the problem, which spurred all three parties in the case to appeal to the high court.
The USPTO and Smith & Nephew Inc., which successfully challenged Arthrex's suture patent, told the justices the appeals court was wrong and the judges were properly appointed. Arthrex maintains that the Federal Circuit's fix didn't go far enough and that the entire inter partes review system must be struck down so that Congress can pass a new law.
The Supreme Court will hear arguments later this year, and a decision siding with Arthrex could turn the patent world upside down by eliminating, possibly for an extended period, a tool that has become a key part of most patent cases.
The outcome might impact hundreds or even thousands of inter partes review decisions, so "it can have some far-reaching effects with regards to IPRs, if the Federal Circuit's solution wasn't sufficient to fix the problem," said Wong.
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