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United States v. Arthrex Inc.

Consolidated with:

Docket No. Op. Below Argument Opinion Vote Author Term
19-1434 Fed. Cir. Mar 1, 2021 TBD TBD TBD OT 2020

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of the respondents in this case.

Issues: (1) Whether, for purposes of the Constitution’s appointments clause, 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; and (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.

DateProceedings and Orders (key to color coding)
Jun 25 2020Petition for a writ of certiorari filed. (Response due July 29, 2020)
Jul 20 2020Blanket Consent filed by Respondents, Smith & Nephew, Inc., et al.VIDED
Jul 20 2020Blanket Consent filed by Respondent, Arthrex, Inc.VIDED
Jul 20 2020Blanket Consent filed by Petitioner, United States VIDED
Jul 22 2020Blanket Consent filed by Respondent, Polaris Innovations Limited VIDED
Jul 23 2020Brief of respondents Smith & Nephew, Inc., et al. filed. VIDED
Jul 24 2020Response to petition from respondent Arthrex, Inc. filed. VIDED.
Jul 29 2020Brief amicus curiae of Askeladden L.L.C. filed.
Jul 29 2020Brief amicus curiae of The New York Intellectual Property Law Association filed. VIDED.
Aug 12 2020DISTRIBUTED for Conference of 9/29/2020.
Oct 05 2020DISTRIBUTED for Conference of 10/9/2020.
Oct 13 2020Petition GRANTED as to Federal Circuit case No. 2018-2140, and the petitions for writs of certiorari in Nos. 19-1452 and 19-1458 are granted, all limited to Questions 1 and 2 as set forth in the July 22, 2020 Memorandum for the United States. The cases are consolidated, and a total of one hour is allotted for oral argument. VIDED.
Oct 13 2020Because the Court has consolidated these cases for briefing and oral argument, future filings and activity in the cases will now be reflected on the docket of No. 19-1434. Subsequent filings in these cases must therefore be submitted through the electronic filing system in No. 19-1434. Each document submitted in connection with one or more of these cases must include on its cover the case number and caption for each case in which the filing is intended to be submitted. Where a filing is submitted in fewer than all of the cases, the docket entry will reflect the case number(s) in which the filing is submitted; a document filed in all of the consolidated cases will be noted as “VIDED.”
Oct 21 2020Petitioners in Nos. 19-1434 and 19-1452 shall each file an opening brief, limited to 13,000 words, on or before Wednesday, November 25, 2020. Amicus curiae briefs in support of petitioners in Nos. 19-1434 or 19-1452, or in support of no party, shall be filed on or before Wednesday, December 2, 2020, and the briefs shall bear a light green cover. Petitioner in No. 19-1458 shall file a consolidated opening and response brief, limited to 17,000 words, on or before Wednesday, December 23, 2020. Amicus curiae briefs in support of petitioner in No. 19-1458 shall be filed on or before Wednesday, December 30, 2020, and the briefs shall bear a dark green cover. Petitioners in Nos. 19-1434 and 19-1452 shall each file a consolidated response and reply brief, limited to 14,500 words, on or before Friday, January 22, 2021. Petitioner in No. 19-1458 shall file a reply brief, limited to 6,000 words, pursuant to Rule 25.3 of the Rules of this Court. VIDED.
Oct 23 2020Motion to dispense with printing the joint appendix filed by the United States. VIDED.
Oct 28 2020Blanket Consent filed by Respondent, Smith & Nephew, Inc., et al.
Oct 29 2020Blanket Consent filed by Respondent, Arthrex, Inc.
Nov 03 2020Blanket Consent filed by Petitioner, United States
Nov 09 2020Motion to dispense with printing the joint appendix filed by the United States GRANTED. VIDED.
Nov 25 2020Opening brief of United States filed. VIDED.
Nov 25 2020Opening brief of Smith & Nephew, Inc., et al. filed. VIDED.
Dec 01 2020Brief amicus curiae of Professor John Harrison in support of neither party filed. VIDED.
Dec 01 2020Brief amici curiae of Acushnet Company and Roger Cleveland Golf Inc. filed. VIDED.
Dec 01 2020Brief amicus curiae of Professor Andrew Michaels in support of neither party filed. VIDED.
Dec 01 2020Brief amicus curiae of Coalition Against Patent Abuse in support of neither party filed. VIDED.
Dec 02 2020Brief amicus curiae of Association for Accessible Medicines filed. VIDED.
Dec 02 2020Brief amici curiae of Cross-Industry Groups filed. VIDED.
Dec 02 2020Brief amicus curiae of Unified Patents, LLC in support of neither party and of reversal filed. VIDED.
Dec 02 2020Brief amicus curiae of Intel Corp. filed. VIDED.
Dec 02 2020Brief amicus curiae of Askeladden L.L.C. filed. VIDED
Dec 02 2020Brief amici curiae of Engine Advocacy and Electronic Frontier Foundation filed. VIDED.
Dec 02 2020Brief amici curiae of Administrative, Constitutional & Intellectual Property Law Professors filed. VIDED.
Dec 02 2020Amicus brief of Administrative, Constitutional & Intellectual Property Law Professors not accepted for filing. (Dupilicate submission) (December 07, 2020)
Dec 02 2020Brief amicus curiae of The Intellectual Property Law Association of Chicago filed. VIDED.
Dec 02 2020Brief amicus curiae of Apple Inc. in support of neither party filed. VIDED.
Dec 02 2020Brief amicus curiae of High Tech Inventors Alliance filed. VIDED.
Dec 02 2020Brief amicus curiae of Niskanen Center filed. VIDED.
Dec 02 2020Brief amicus curiae of eComp Consultants filed. VIDED.
Dec 02 2020Brief amici curiae of Computer & Communications Industry Association, et al. filed. VIDED.
Dec 02 2020Brief amicus curiae of Jason V. Morgan filed (in 19-1434).
Dec 02 2020Brief amicus curiae of American Intellectual Property Law Association filed. VIDED.
Dec 23 2020Motion of the Acting Solicitor General for divided argument filed. VIDED.
Dec 23 2020Brief of respondent Arthrex, Inc. filed. VIDED.
Dec 29 2020Brief amicus curiae of Pacific Legal Foundation filed. VIDED.
Dec 29 2020Brief amici curiae of 39 Aggrieved Inventors filed. VIDED.
Dec 29 2020Brief amicus curiae of B.E. Technology, LLC filed. VIDED.
Dec 30 2020Brief amicus curiae of TiVo Corporation filed. VIDED.
Dec 30 2020Brief amicus curiae of U.S. Lumber Coalition filed. VIDED.
Dec 30 2020Brief amici curiae of Americans for Prosperity Foundation and TechFreedom filed. VIDED
Dec 30 2020Amicus brief of New Civil Liberties Alliance not accepted for filing. (Corrected version to be submitted).
Dec 30 2020Brief amicus curiae of New Civil Liberties Alliance filed (Jan. 5, 2021). VIDED.
Dec 30 2020Brief amicus curiae of US Inventor, Inc. filed. VIDED.
Dec 30 2020Brief amicus curiae of Jeremy C. Doerre filed. VIDED.
Dec 30 2020Brief amici curiae of Cato Institute and Prof. Gregory Dolin filed. VIDED.
Dec 30 2020Brief amicus curiae of Fair Inventing Fund filed. VIDED.
Dec 30 2020Brief amicus curiae of Joshua J. Malone filed. VIDED.
Dec 31 2020SET FOR ARGUMENT on Monday, March 1, 2021. VIDED.
Jan 11 2021Motion for divided argument filed by the Acting Solicitor General GRANTED. VIDED.
Jan 14 2021CIRCULATED
Jan 22 2021Consolidated reply and response brief filed by the United States. VIDED. (Distributed)
Jan 22 2021Consolidated response and reply of Smith & Nephew, Inc., et al. filed. VIDED. (Distributed)
Jan 25 2021Record requested from the U.S.C.A. for the Federal Circuit.
Feb 09 2021The record from the U.S.C.A. Federal Circuit is electronic and located on Pacer.
Feb 19 2021Reply of respondent Arthrex, Inc. filed. VIDED. (Distributed)
Mar 01 2021Argued. For United States: Malcolm L. Stewart, Deputy Solicitor General, Department of Justice, Washington, D. C. For Smith & Nephew, Inc., et al.: Mark A. Perry, Washington, D. C. For Arthrex, Inc.: Jeffrey A. Lamken, Washington, D. C. VIDED.