On October 13, 2020, the Supreme Court granted petitions for certiorari filed by the United States (in No. 19-1434), Smith & Nephew, Inc. (in No. 19-1452), and Arthrex, Inc. (in No. 19-1458) regarding the appointments of the administrative patent judges of the Patent Trial and Appeal Board. No date has been set to argue the cases, but the Court consolidated them and allotted one hour for argument time. Because the Court consolidated the cases for briefing and oral argument, it noted that “future filings and activity in the cases will now be reflected on the docket of No. 19-1434.” On December 31, 2020, the Court set oral argument for March 1, 2021.
The various petitions were granted only to the extent of “Questions 1 and 2 as set forth in the July 22, 2020 Memorandum for the United States.” See Orders List at 2.
Question 1 asks “[w]hether, for purposes of the Appointments Clause, U.S. Const. Art. II, § 2, Cl. 2, 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.”
Question 2 asks “[w]hether, 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.”
Links to the briefs, and details of the briefing schedule, are below. [Updated 1/8/2021, to reflect most current filings, and argument date]
Memorandum for the United States (also filed in Nos. 19-1452 and 19-1458)
Memorandum in Response for Respondent Arthrex, Inc. (also filed in No. 19-1452)
Brief for Respondents Smith & Nephew, Inc. and Arthrocare Corp. (also filed in No. 19-1458)
As set forth in the Court’s Order of October 21, 2020, briefing is set to proceed on the following schedule:
On or before Wednesday, November 25, 2020: Petitioners in Nos. 19-1434 and 19-1452 shall each file an opening brief, limited to 13,000 words.
On or before Wednesday, December 2, 2020: Amicus curiae briefs in support of petitioners in Nos. 19-1434 or 19-1452, or in support of no party, shall be filed, and the briefs shall bear a light green cover.
On or before Wednesday, December 23, 2020: Petitioner in No. 19-1458 shall file a consolidated opening and response brief, limited to 17,000 words.
On or before Wednesday, December 30, 2020: Amicus curiae briefs in support of petitioner in No. 19-1458 shall be filed, and the briefs shall bear a dark green cover.
On or before Friday, January 22, 2021: Petitioners in Nos. 19-1434 and 19-1452 shall each file a consolidated response and reply brief, limited to 14,500 words.
Pursuant to Rule 25.3 of the Rules of the Court,* Petitioner in No. 19-1458 shall file a reply brief, limited to 6,000 words.
*Rule 25.3 recites: “The petitioner or appellant shall file 40 copies of the reply brief, if any, within 30 days after the brief for the respondent or appellee is fled, but any reply brief must actually be received by the Clerk not later than 2 p.m. 10 days before the date of oral argument. Any respondent or appellee supporting the petitioner or appellant may file a reply brief.”
Substantive Briefing, as of December 31, 2020:
Opening Brief for the United States, filed November 25, 2020
Opening Brief for Smith & Nephew and Arthrocare, filed November 25, 2020
Opening Brief for respondent Arthrex, filed December 23, 2020
Amici curiae who filed briefs, as of December 31, 2020:
December 1, 2020
Acushnet Company and Roger Cleveland Golf Inc.
Coalition Against Patent Abuse
Professor Andrew Michaels
Professor John Harrison
December 2, 2020
Administrative, Constitutional & Intellectual Property Law Professors
American Intellectual Property Law Association
Association for Accessible Medicines
Computer & Communications Industry Association, et al.
Engine Advocacy and Electronic Frontier Foundation
High Tech Inventors Alliance
The Intellectual Property Law Association of Chicago
Jason V. Morgan
Unified Patents, LLC
December 29, 2020
39 Aggrieved Inventors
B.E. Technology, LLC
Pacific Legal Foundation
December 30, 2020
Americans for Prosperity Foundation and TechFreedom
Fair Inventing Fund
Jeremy C. Doerre
Joshua J. Malone
New Civil Liberties Alliance
U.S. Lumber Coalition
US Inventor, Inc.
January 5, 2021
New Civil Liberties Alliance