Case: 19-2111    Document: 65    Page: 1   Filed: 09/09/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

           SNYDERS HEART VALVE LLC,
                   Appellant

                            v.

                ST. JUDE MEDICAL, LLC,
                        Appellee

                    UNITED STATES,
                        Intervenor
                  ______________________

                        2019-2111
                  ______________________

     Appeal from the United States Patent and Trademark
 Office, Patent Trial and Appeal Board in No. IPR2018-
 00107.
                  ______________________

                Decided: September 9, 2020
                  ______________________

     MATTHEW JAMES ANTONELLI, Antonelli, Harrington &
 Thompson, LLP, Houston, TX, for appellant. Also repre-
 sented by ZACHARIAH HARRINGTON, LARRY D. THOMPSON,
 JR.; SARAH RING, Daniels & Tredennick, Houston, TX.

    JOHN C. O'QUINN, Kirkland & Ellis LLP, Washington,
 DC, for appellee. Also represented by HANNAH LAUREN
Case: 19-2111    Document: 65      Page: 2    Filed: 09/09/2020




 2          SNYDERS HEART VALVE LLC   v. ST. JUDE MEDICAL, LLC



 BEDARD, JASON M. WILCOX; BRYAN SCOTT HALES, KRISTINA
 NICOLE HENDRICKS, Chicago, IL.

     MELISSA N. PATTERSON, Appellate Staff, Civil Division,
 United States Department of Justice, Washington, DC, for
 intervenor. Also represented by COURTNEY DIXON, SCOTT
 R. MCINTOSH, ETHAN P. DAVIS; THOMAS W. KRAUSE,
 ROBERT MCBRIDE, FARHEENA YASMEEN RASHEED, Office of
 the Solicitor, United States Patent and Trademark Office,
 Alexandria, VA.
                   ______________________

 Before NEWMAN, O’MALLEY, and TARANTO, Circuit Judges.
 PER CURIAM.
     In its opening brief, Snyders Heart Valve LLC
 (“Snyders”) argues that the final written decision of the Pa-
 tent Trial and Appeal Board (“Board”) at issue in this ap-
 peal violates the Constitution’s Appointments Clause
 because it was rendered by an unconstitutionally ap-
 pointed panel of Administrative Patent Judges. Appel-
 lant’s Br. 14. We decided this issue in Arthrex, Inc. v.
 Smith & Nephew, Inc., 

(Fed. Cir. 2019). 1
 Under Arthrex, which post-dated the Board’s final written




     1   Snyders argues that the Arthrex remedy is insuffi-
 cient because it does not allow for review of the Board’s de-
 cisions by a superior officer and is inconsistent with
 Congress’s intent that Administrative Patent Judges act
 independently. Appellant’s Br. at 15–16. We do not sepa-
 rately address these argument as we are bound by Arthrex.
 Arthrex, Inc. v. Smith & Nephew, Inc., 

, 1338
 (Fed. Cir. 2019).
Case: 19-2111     Document: 65      Page: 3    Filed: 09/09/2020




 SNYDERS HEART VALVE LLC    v. ST. JUDE MEDICAL, LLC          3



 decision in this case, Snyders is entitled to vacatur and re-
 mand for a hearing before a properly appointed Board. 2
      Snyders further argues that due to its own unique cir-
 cumstances it is entitled to greater relief than that afforded
 to the appellant in Arthrex. Appellant’s Br. 16–18. In
 Snyders’ case, the Director of the United States Patent and
 Trademark Office (“USPTO”), Andre Iancu, served as coun-
 sel for the Appellee St. Jude Medical LLC (“St. Jude”) in a
 parallel proceeding prior to his appointment as Director.
 Director Iancu has therefore recused himself from this
 case. Snyders argues that the Director’s conflict should be
 imputed to all USPTO employees and that his recusal
 should impact the remedy available to Snyders. This argu-
 ment is without merit. The USPTO’s Deputy Director has
 the authority to step into the shoes of Director in the event
 of the Director’s “incapacity.” 35 U.S.C. § 3(b)(1). A conflict
 requiring recusal qualifies as an “incapacity” within the
 meaning of the statute. Cf. In re Grand Jury Investigation,
 

, 1055–56 (D.C. Cir. 2019) (discussing, under
 a similar statutory scheme, the Deputy Attorney General’s
 authority to oversee a case when the Attorney General is
 recused). The Deputy Director’s role sufficiently removes
 any potential taint of the Director’s conflict. We see no rea-
 son why, moreover, the Director’s lack of participation oth-
 erwise impacts the Arthrex remedy analysis. Accordingly,




     2   St. Jude argues that because Snyders expressly
 waived its Arthrex-based challenge in a companion appeal,
 Case Nos. 2019-2108, -2109, -2140, we should deem the ar-
 gument waived in this appeal. Snyders was not obligated
 to press every argument available to it in a different appeal
 to maintain its rights in this one. The companion appeal
 addresses inter partes reviews of a different patent than
 the one at issue in this appeal. We do not find waiver on
 this record.
Case: 19-2111     Document: 65     Page: 4   Filed: 09/09/2020




 4         SNYDERS HEART VALVE LLC   v. ST. JUDE MEDICAL, LLC



 Snyders is entitled to the same relief given to the Arthrex
 appellant and no more.
     The decision of the Board is thus vacated and re-
 manded for proceedings consistent with our decision in Ar-
 threx.
                 VACATED AND REMANDED
                           COSTS
     No costs.