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Bedgear, LLC v. Fredman Bros. Furniture Co.

United States Court of Appeals for the Federal Circuit

November 7, 2019, Decided

2018-2082, 2018-2083, 2018-2084

Opinion

 [*1030]  Per Curiam.

In its opening brief, Bedgear, LLC argues that the three final written decisions at issue in this appeal exceed the scope of the Patent Trial and Appeal Board's authority and violate the Constitution's Appointments Clause. See Appellant's Br. 66 (citing U.S. Const. art. II, § 2, cl. 2). This court recently decided this issue in Arthrex, Inc. v. Smith & Nephew, Inc., No. 18-2140, 941 F.3d 1320, 2019 U.S. App. LEXIS 32613 (Fed. Cir. Oct. 31, 2019). Accordingly, the Board's decisions in Nos. IPR2017-00350, IPR2017-00351, and IPR2017-00352 are vacated and the case is remanded to the Board for proceedings consistent with this court's decision in Arthrex.

VACATED AND REMANDED

Costs

No costs.

Concur by: DYK

Concur

DYK, Circuit Judge, with whom Circuit Judge [**2]  NEWMAN joins, concurring in the judgment.

I agree that the panel here is bound to follow Arthrex, Inc. v. Smith & Nephew, Inc., No. 2018-2140, 941 F.3d 1320, 2019 U.S. App. LEXIS 32613, 2019 WL 5616010 (Fed. Cir. Oct. 31, 2019). But, even putting to one side the question of whether Administrative Patent Judges ("APJs") would have been improperly appointed (if not subject to at will removal), it seems to me that the remedy aspect of Arthrex (requiring a new hearing before a new panel) is not required by Lucia v. S.E.C., 138 S. Ct. 2044, 201 L. Ed. 2d 464 (2018), imposes large and unnecessary burdens on the system of inter partes review, requiring potentially hundreds of new proceedings, and involves unconstitutional prospective decision-making.

In Arthrex, the panel held that the appointment of Administrative Patent Judges ("APJs") would be unconstitutional if subject to the removal provisions of title 5. The panel avoids this result by holding that those removal provisions are unconstitutional as applied to APJs, and that the unconstitutional removal provision may be severed from the remainder of the statute "to render the APJs inferior officers and remedy the constitutional appointment problem." Arthrex, 941 F.3d 1320, 2019 U.S. App. LEXIS 32613, 2019 WL 5616010, at *1. Instead of holding past actions by APJs valid, the Arthrex majority held those past actions invalid and remanded for a new hearing before a new panel "[b]ecause the Board's decision [**3]  in this case was made by a panel of APJs that were not constitutionally appointed at the time the decision was rendered." Arthrex, 941 F.3d 1320, 2019 U.S. App. LEXIS 32613, 2019 WL 5616010, at *11.

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783 Fed. Appx. 1029 *; 2019 U.S. App. LEXIS 33299 **; 2019 WL 5806893

BEDGEAR, LLC, Appellant v. FREDMAN BROS. FURNITURE COMPANY, INC., Appellee

Notice: THIS DECISION WAS ISSUED AS UNPUBLISHED OR NONPRECEDENTIAL AND MAY NOT BE CITED AS PRECEDENT. PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

Subsequent History: As Amended November 12, 2019.

Prior History:  [**1] Appeals from the United States Patent and Trademark Office, Patent Trial and Appeal Board in Nos. IPR2017-00350, IPR2017-00351, IPR2017-00352.

Bedgear, LLC v. Fredman Bros. Furniture Co., 2019 U.S. Dist. LEXIS 29313 (E.D.N.Y., Feb. 25, 2019)

CORE TERMS

appointed, retroactive, decisions, removal, new hearing, inferior officer, invalid