Eugene Goryunov in Law360: ‘Patent Law is Just the Beginning for High Court in Arthrex’

10/14/2020

Haynes and Boone, LLP Partner Eugene Goryunov talked with Law360 about U.S. v. Arthrex, which offers a chance for the U.S. Supreme Court to clear up a lingering question about the Constitution's appointments clause.

Below is an excerpt:

The justices seem set to use U.S. v. Arthrex to clarify the difference between principal and inferior officers under the U.S. Constitution's appointments clause, something that will apply to the U.S. Patent and Trademark Office and other agencies trying to pick apart the difference.

Exactly what the Supreme Court will do if it decides administrative patent judges were wrongly appointed will impact hundreds of patent cases and show how a newly realigned court will view law governing executive branch agencies. The justices' solution could range from severing part of the Patent Act, which is what the Federal Circuit did, to calling for the America Invents Act to be rewritten.

… Arthrex could be a test for whether conservative justices, who tend to favor courts over agencies, will clamp down on administrative law and push disputes from agency tribunals into Article III courts.

But that will partly depend on who ends up writing the decision, said Haynes and Boone, LLP Partner Eugene Goryunov. In the end, it could be framed as a case looking at the interplay of constitutional requirements and administrative agencies, or one focusing directly on the constitutional issues.

Future of Patent Challenges

… attorneys are torn about how this waiting period until the Supreme Court makes its decision will affect patent litigation in the interim.
Goryunov, of Haynes and Boone, said any company facing infringement litigation that was already considering filing a patent challenge will likely still do so. That way, if the PTAB holds up under the high court's scrutiny, they won't risk missing the one-year statutory deadline to file a challenge, he said.

"[The Supreme Court] is not going to say we uphold the practice and all of you get a freebie," he said of the deadline.

To read the full article, click here.

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