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In its only precedential patent case this week, the Federal Circuit addressed last gasp efforts by CyWee to salvage its IPR losses to Google.  The arguments, residual Appointments Clause arguments following Supreme Court and Federal Circuit opinions in Arthrex, Inc. v. Smith & Nephew, were rejected by the Court, which affirmed.

In June 2018, Google filed petitions for IPR.  The Board instituted the IPRs.  Thereafter, each IPR was joined by a number of other parties.  Because of the joinders, the Board extended its deadline for the final written decisions by one month.  Within that month, the Board issued its final written decisions finding each challenged claim unpatentable for obviousness.

CyWee appealed.  In addition to challenging the ultimate decision on the merits, CyWee challenged the appointment of the Board under the Appointments Claus.  The Federal Circuit affirmed.

Shortly after the mandate issued, the Supreme Court issued its decision in United States v. Arthrex, Inc., 141 S. Ct. 1970 (2021), holding that the administrative patent judges were improperly appointed in violation of the Appointments Clause.  On motion, the Federal Circuit recalled the mandate and remanded for the limited purpose of allowing CyWee to request Director rehearing—the remedy provided by the Supreme Court in Arthrex.  The Commissioner, at the time acting as Director, denied the requests.  CyWee filed amended notices of appeal challenging the rehearing denials.

CyWee’s opening brief largely contested the Commissioner’s authority to perform the review contemplated in Arthrex.  That issue was already nearing resolution by the Court in a separate proceeding—a second appeal in the Arthrex matter (Arthrex II).  On Google’s motion, the Federal Circuit stayed CyWee’s appeal pending disposition of Arthrex II.  Ultimately, the Arthrex II panel affirmed the Commissioner’s authority to conduct Director reviews.  The Court lifted the stay of CyWee’s appeal and directed CyWee to file a supplemental brief identifying any arguments from its opening brief that it believed were not foreclosed or otherwise resolved by Arthrex II.

CyWee’s remaining argument concerned timeliness of the Director review.  Specifically, CyWee seemed to assert that the Director must perform (or at least be able to perform) the Director review contemplated by Arthrex within the statutory deadline for issuance of final written decisions.  The Federal Circuit roundly rejected this argument, finding no support in the statute.

CyWee also appeared to challenge the Board’s decision to extend the deadline for issuing a final written decision by one month, suggesting that this, too, violated the Appointments Clause because there was no opportunity for Director review of that decision.  The Court rejected that argument as well, holding that the Director had the right to revisit those decisions should he or she so decide.  The Court held that, in any event, the fact that CyWee did not have the opportunity to seek Director review of the extension order did not constitute an Appointments Clause violation.

The opinion can be found here.

By Nika Aldrich

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This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact an attorney.