Fed. Circ.'s Arthrex Decision Should Apply Retroactively

Michaels, Andrew C.

doi:10.2139/ssrn.3550731

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Fed. Circ.'s Arthrex Decision Should Apply Retroactively

Law360, 2019

5 Pages Posted: 2 Apr 2020 Last revised: 8 Apr 2020

See all articles by Andrew C. Michaels

Andrew C. Michaels

University of Houston Law Center

Date Written: December 5, 2019

Abstract

In Arthrex, the Federal Circuit struck down certain removal protections for Administrative Patent Judges as unconstitutional. The Court then held that (potentially hundreds of) final PTAB decisions that were pending before the Federal Circuit had to be vacated and reheard by the PTAB, now that the PTAB judges had fewer removal protections. In a concurrence in Bedgear, Judge Dyk (joined by Judge Newman) argued that these remands were not only wasteful but also unnecessary and indeed unlawful as contrary to the doctrine of retro-activity. This short article agrees with and elaborates on that concurrence, explicating the roots of the doctrine of retroactivity in separation of powers principles, and its beneficial effect on stare decisis.

Suggested Citation: Suggested Citation

Michaels, Andrew C., Fed. Circ.'s Arthrex Decision Should Apply Retroactively (December 5, 2019). Law360, 2019, Available at SSRN: https://ssrn.com/abstract=3550731 or http://dx.doi.org/10.2139/ssrn.3550731