Federal Circuit extends Arthrex to ex parte appeals

Boloro Global, 2019-2349, -2351, -2353, July 7, 2020

Boloro Global (“Boloro”) appealed three decisions from the PTAB affirming the examiner’s rejection of Boloro’s three patent applications – 14/222613, 14/222615 and 14/222616 – under section 101 to the CAFC in August of 2019. The CAFC subsequently decided Arthrex, holding that APJ’s were not constitutionally appointed. In January 2020, Boloro filed a motion to vacate the Board’s decisions and remand for further proceedings. On July 7, the CAFC granted Boloro’s motion over the USPTO’s arguments that the Arthrex remedy was not extendable to ex parte proceedings since the Director has “complete control over the initial examination.” Specifically, the Court held:

But the Director having conceded that the APJ’s appointments were unconstitutional, we see no principled reason to depart here from the resulting remedy applied in Arthrex and VirnetX.