By Nate Andrews and Matt Johnson

The full Federal Circuit denied rehearing in PolarisPolaris Innovations Ltd. v. Kingston Technology Company, No. 2018-1831.  As previously discussed, both the U.S. government and Polaris requested rehearing after the court applied Arthrex to vacate and remand the PTAB’s final written decision.

Polaris highlighted an interesting procedural aspect of the Appointments Clause issue: waiving the constitutional challenge.  In Arthrex, the court decided the Appointments Clause challenge was not waived despite having not been raised before the PTAB.  The government has challenged that aspect of the holding consistently and repeatedly.  Polaris was an interesting case in part because Polaris did raise the Appointments Clause challenge at the PTAB.  Thus, Polaris and the government argued that the case was a better procedural vehicle for rehearing than Arthrex because Polaris did not waive the Appointments Clause challenge at the PTAB—unlike in Arthrex.

But the court was not enticed.  The court instead denied rehearing and rehearing en banc in a brief, non-substantive order.

This denial could indicate a couple of takeaways.  First, it could show that there are few judges on the court who are persuaded by the government’s argument regarding waiver.  The government has committed to the waiver argument because winning on that procedural issue would dramatically limit the availability of the Arthrex remedy (vacatur and remand for rehearing before a new PTAB panel).  But this denial—in a case where the issue could be procedurally isolated and addressed on the merits—may show that few judges buy the government’s position.

Second, it could show that the court is focusing its attention on Arthrex.  The court interestingly took only 25 days to deny these petitions in Polaris.  Meanwhile, all three parties filed rehearing petitions in Arthrex on December 16—three months ago at the time of this writing.  The court still has not granted or denied those petitions.  Thus, the rehearing denial in Polaris may show that the court is summarily rejecting related rehearing petitions—even with procedurally interesting questions and reluctant judges—and focusing on Arthrex itself.

The government and Polaris may now seek the Supreme Court’s review or head back to the PTAB for rehearing as ordered by the court.

We will continue to monitor and report on Arthrex-related developments.

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Matt Johnson is one of the Firm's primary contacts on practice before the PTAB. Matt consults on nearly every one of Jones Day's over 290 PTAB cases to date. He currently serves as co-chair of Jones Day's PTAB practice.