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New Vision s arguments were unavailing, however, as the Federal Circuit avoided the issue entirely, ruling last week that the Board s decision be vacated and the case remanded for hearing before a constitutionally properly appointed panel.  The basis for this decision is that New Vision had not waived its challenge under
Arthrex, Inc. v. Smith & Nephew, now under review by the Supreme Court.  The Federal Circuit s opinion was written by Judge Moore joined by Judge Taranto and in part by Judge Newman, who also dissented-in-part.  It is Judge Newman s dissent that is noteworthy, because Judge Newman believed that the question of whether a contract/license between the parties, designating the District of Nevada as the forum for any dispute, should have precluded the PTAB from asserting jurisdiction (and as a threshold issue might have precluded remand if the PTAB had improperly done so).  The PTAB, intervenor in this appeal, maintained that the jurisdiction issue was not pro ....

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