Federal Circuit Will Not Reconsider Arthrex Ruling
Written March 25, 2020
The US Court of Appeals for the Federal Circuit on March 23, 2020, denied a petition for a full-court rehearing of its Arthrex Inc. v. Smith and Nephew, Inc. decision. Fed. Cir., No. 18-2140, en banc review denied 3/23/20.
In Arthrex, a Federal Circuit panel found that PTAB judges were principal officers who needed to be appointed by the president and confirmed by the Senate. The court severed part of the law that prevented the judges from being fired without cause, making them inferior officers who could be appointed by the agency’s director.
A full court rehearing “would only create unnecessary uncertainty and disruption,” Judge Kimberly A. Moore, the author of the panel decision, wrote in an opinion concurring with the en banc denial.