Both the United States and Polaris have requested en banc review in the recent Federal Circuit decision of Polaris v. Kingston. This case presents substantially similar issues as those that were presented in Arthrex. Namely, should PTAB judges be considered principal officers of the United States, who must be nominated by the “President” and confirmed by the Senate? My understanding is that Polaris actually raised this issue in its appeal briefing before the parties in Arthrex did so; but, due to the timing of oral arguments, the Federal Circuit panel in Arthrex was able to rule first (in a very speedy opinion after oral argument). During its oral argument, Polaris argued that its case would be a better vehicle for en banc review than the Arthrex case. I tend to agree; although, I personally would like to see both cases considered together in a joint en banc review.
You can read Solicitor Krause’s en banc petition for the PTO here:
You can read Polaris’ en banc petition here: