Whether a court of appeals can invoke forfeiture to refuse to address a constitutional claim in a pending appeal despite an intervening change in law

QUESTION PRESENTED TYM Technologies LLC’s (“IYM’s”) appeals below arose from two decisions by the Patent Trial and Appeal Board (“PTAB” or “Board”) to revoke TYM’s patent claims during an inter partes review (“IPR”) proceeding. While IYM’s appeals were pending, the Federal Circuit held in another case, Arthrex, Inc. v. Smith & Nephew, Inc. 941 F.3d 1320 (Fed. Cir. 2019), rehg denied, 953 F.3d 760 (2020), that the administrative patent judges who conduct inter partes review proceedings had been appointed in violation of the Appointments Clause. The Federal Circuit, however, has repeatedly refused to apply its Arthrex ruling to cases like here, in which the appellant did not raise an Appointments Clause challenge in its opening brief on appeal. The question presented is: Whether a court of appeals can invoke forfeiture to refuse to address a constitutional claim in a pending appeal despite an intervening change in law.