Log in
E-mail
Password
Remember
Forgot password ?
Become a member for free
Sign up
Sign up
New member
Sign up for FREE
New customer
Discover our services
Settings
Settings
Dynamic quotes 
OFFON

MarketScreener Homepage  >  Equities  >  London Stock Exchange  >  Smith & Nephew Plc    SN.   GB0009223206

SMITH & NEPHEW PLC

(SN.)
  Report
SummaryQuotesChartsNewsRatingsCalendarCompanyFinancialsConsensusRevisions 
SummaryMost relevantAll NewsPress ReleasesOfficial PublicationsSector newsAnalyst Recommendations

Missing Appointments: Supreme Court Grants Certiorari In Arthrex V. Smith & Nephew

10/22/2020 | 10:12am EST

While all eyes have been trained on the confirmation hearings from last week, the Supreme Court made news in the IP world. The Court granted certiorari in Arthrex v. Smith & Nephew (Nos. 19-1434, -1452, -1458), a decision analyzing the Appointments Clause, U.S. Const. Art. II, § 2, Cl. 2. In Arthrex, a panel of the Federal Circuit held that the statutory scheme for appointing administrative patent judges (APJs) of the Patent Trial and Appeal Board violates the Appointments Clause. Arthrex is an appeal from a final written decision of an inter partes review challenge (IPR) by Smith & Nephew to Arthrex's patent. On appeal, Arthrex challenged the construction of the APJ panel itself, arguing that APJs are "principal officers" under the Appointments Clause and thus should have been appointed by the President directly, with the advice and consent of the Senate. Presently, APJs are appointed by the Secretary of Commerce in consultation with the Director of the PTO, themselves both presidential appointees.

At this point you may be asking, "Why am I reading about a PTAB decision in a Trademark/Copyright Blog?" The answer is that the manner in which the PTO appoints PTAB judges is the same way it appoints TTAB judges, so the reasoning of this decision should apply to the appointments of TTAB ALJs as well. (Congress is considering a bill to circumvent the Appointments Clause problem for TTAB judges in The Trademark Modernization Act of 2020, H.R. 6196.) Arthrex is also a pretty interesting decision in its own right.

Turning back to the Federal Circuit decision, the court determined that APJs are principal officers, who require presidential appointment, rather than "inferior officers," whom presidential appointees have the power to appoint under the Constitution. Applying the test enunciated in Edmund v. United States, 520 U.S. 651, 664-65 (1997), the Federal Circuit stated that the Director does not have sufficient authority to review APJ decisions, and only limited power to remove an APJ. This lack of review and limited removal authority is indicative of the independence associated with a principal officer, the court found. Holding that APJs are principal officers, the Court then concluded that their current method of appointment violated the Appointments Clause.

The Federal Circuit then considered whether it could sever aspects of the statutory employment scheme for APJs to remove the constitutional defect. It held that it could, and accordingly eliminated the restrictions on removal placed upon the Director, thus changing the balance in favor of holding APJs to be inferior officers.

In granting certiorari, the Supreme Court limited review to the following questions.

  1. Whether, for purposes of the Appointments Clause, U.S. Const. Art. II, § 2, Cl. 2, administrative patent judges of the U.S. Patent and Trademark Office are principal officers who must be appointed by the President with the Senate's advice and consent, or "inferior Officers" whose appointment Congress has permissibly vested in a department head.
  2. Whether, if administrative patent judges are principal officers, the court of appeals properly cured any Appointments Clause defect in the current statutory scheme prospectively by severing the application of 5 U.S.C. 7513(a) to those judges.

We expect arguments to be scheduled for early 2021.

To view Foley Hoag's Trademark and Copyright Law Blog please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Mr Peter Sullivan
Foley Hoag LLP
Seaport West
155 Seaport Boulevard
Boston
MA US 02210-2600
UNITED STATES
Tel: 6178321000
Fax: 617 8327000
E-mail: ACallanan@foleyhoag.com
URL: www.foleyhoag.com

© Mondaq Ltd, 2020 - Tel. +44 (0)20 8544 8300 - http://www.mondaq.com, source Business Briefing

All news about SMITH & NEPHEW PLC
11/23SMITH & NEPHEW : SCOTUS To Decide Constitutionality Of PTAB Judge Appointments
AQ
11/20SMITH & NEPHEW : Investor presentation October - December 2020
PU
11/20SMITH & NEPHEW : What Arthrex Could Mean For The PTAB Going Forward
AQ
11/18SMITH & NEPHEW : New data shows Smith+Nephew's NOVOSTITCH Meniscal Repair System..
AQ
11/13ARTHREX : Who Are You Calling Inferior?
AQ
11/06SMITH & NEPHEW : +Nephew adds patient selection and care-pathway optimization to..
AQ
10/31SMITH & NEPHEW PLC : Monthly statement on outstanding equity shares and voting r..
CO
10/29SMITH & NEPHEW : +Nephew revenue lifted by recovery in elective surgery demand
RE
10/29SMITH & NEPHEW : 3Q Underlying Revenue Improved After Virus Hit
DJ
10/29SMITH & NEPHEW : +Nephew Third Quarter 2020 Trading Report
PU
More news
Financials (USD)
Sales 2020 4 694 M - -
Net income 2020 389 M - -
Net Debt 2020 1 633 M - -
P/E ratio 2020 44,7x
Yield 2020 1,52%
Capitalization 16 624 M 16 613 M -
EV / Sales 2020 3,89x
EV / Sales 2021 3,37x
Nbr of Employees 17 500
Free-Float 98,7%
Chart SMITH & NEPHEW PLC
Duration : Period :
Smith & Nephew Plc Technical Analysis Chart | SN. | GB0009223206 | MarketScreener
Technical analysis trends SMITH & NEPHEW PLC
Short TermMid-TermLong Term
TrendsNeutralNeutralNeutral
Income Statement Evolution
Consensus
Sell
Buy
Mean consensus HOLD
Number of Analysts 15
Average target price 21,24 $
Last Close Price 19,02 $
Spread / Highest target 41,0%
Spread / Average Target 11,7%
Spread / Lowest Target -29,9%
EPS Revisions
Managers
NameTitle
Roland D. Diggelmann Chief Executive Officer & Non-Executive Director
Roberto Quarta Chairman
Mark Gladwell President-Global Operations & Business Services
Anne-Francoise Nesmes Chief Financial Officer & Executive Director
Vasant Padmanabhan President-Research & Development
Sector and Competitors