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United States v. Arthrex, Inc., et al.

Paid petition · United States Court of Appeals for the Federal Circuit, No. 2018-2140

Decided · June 21, 2021
Pre-decision estimate: 29% cert probability (95% interval 17%–45%)

Before the decision, about 7× the 4.1% base rate. The model weighted this up for a federal-government petitioner and a dissent in the court below (flagged in the petition), and down for a business respondent.

Questions presented

Consolidated with 19-1952.

  1. Whether, 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.

  2. Whether the court of appeals erred by adjudicating an Appointments Clause challenge brought by a litigant that had not presented the challenge to the agency. THE PETITION FOR A WRIT OF CERTIORARI IN No. 19-1434 IS GRANTED AS TO FEDERAL CIRCUIT CASE No. 2018-2140

Counsel of record

For petitioner
Brian H. Fletcher
Acting Solicitor General

For respondent
Jeffrey Alan Lamken
MoloLamken LLP

Case

Conference history
Distributed for 2 conferences

Amicus briefs
2 cert-stage · 31 merits
(19 supporting pet./neither, 12 respondent)

Related
Vide, 19-1452, 19-1458

Argument & decision

Argued March 1, 2021 — Malcolm L. Stewart · Mark A. Perry · Jeffrey A. Lamken. Audio and transcript

Decided June 21, 2021. Opinion by Roberts, C.J..

Proceedings

  1. Jul 23 2021
    JUDGMENT ISSUED.
  2. Jun 21 2021
    Judgment VACATED and case REMANDED. Roberts, C. J., delivered the opinion of the Court with respect to Parts I and II, in which Alito, Gorsuch, Kavanaugh, and Barrett, JJ., joined, and an opinion with respect to Part III, in which Alito, Kavanaugh, and Barrett, JJ., joined. Gorsuch, J., filed an opinion concurring in part and dissenting in part. Breyer, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Sotomayor and Kagan, JJ., joined. Thomas, J., filed a dissenting opinion, in which Breyer, Sotomayor, and Kagan, JJ., joined as to Parts I and II. VIDED.
  3. Mar 01 2021
    Argued. 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.
  4. Feb 19 2021
    Reply of respondent Arthrex, Inc. filed. VIDED. (Distributed)
  5. Feb 09 2021
    The record from the U.S.C.A. Federal Circuit is electronic and located on Pacer.
  6. Jan 25 2021
    Record requested from the U.S.C.A. for the Federal Circuit.
  7. Jan 22 2021
    Consolidated reply and response brief filed by the United States. VIDED. (Distributed)
  8. Jan 22 2021
    Consolidated response and reply of Smith & Nephew, Inc., et al. filed. VIDED. (Distributed)
  9. Jan 14 2021
    CIRCULATED
  10. Jan 11 2021
    Motion for divided argument filed by the Acting Solicitor General GRANTED. VIDED.
  11. Dec 31 2020
    SET FOR ARGUMENT on Monday, March 1, 2021. VIDED.
  12. Dec 30 2020
    Brief amicus curiae of TiVo Corporation filed. VIDED.
  13. Dec 30 2020
    Brief amicus curiae of U.S. Lumber Coalition filed. VIDED.
  14. Dec 30 2020
    Brief amici curiae of Americans for Prosperity Foundation and TechFreedom filed. VIDED
  15. Dec 30 2020
    Amicus brief of New Civil Liberties Alliance not accepted for filing. (Corrected version to be submitted).
  16. Dec 30 2020
    Brief amicus curiae of New Civil Liberties Alliance filed (Jan. 5, 2021). VIDED.
  17. Dec 30 2020
    Brief amicus curiae of US Inventor, Inc. filed. VIDED.
  18. Dec 30 2020
    Brief amicus curiae of Jeremy C. Doerre filed. VIDED.
  19. Dec 30 2020
    Brief amici curiae of Cato Institute and Prof. Gregory Dolin filed. VIDED.
  20. Dec 30 2020
    Brief amicus curiae of Fair Inventing Fund filed. VIDED.
  21. Dec 30 2020
    Brief amicus curiae of Joshua J. Malone filed. VIDED.
  22. Dec 29 2020
    Brief amicus curiae of Pacific Legal Foundation filed. VIDED.
  23. Dec 29 2020
    Brief amici curiae of 39 Aggrieved Inventors filed. VIDED.
  24. Dec 29 2020
    Brief amicus curiae of B.E. Technology, LLC filed. VIDED.
  25. Dec 23 2020
    Motion of the Acting Solicitor General for divided argument filed. VIDED.
  26. Dec 23 2020
    Brief of respondent Arthrex, Inc. filed. VIDED.
  27. Dec 02 2020
    Brief amicus curiae of Association for Accessible Medicines filed. VIDED.
  28. Dec 02 2020
    Brief amici curiae of Cross-Industry Groups filed. VIDED.
  29. Dec 02 2020
    Brief amicus curiae of Unified Patents, LLC in support of neither party and of reversal filed. VIDED.
  30. Dec 02 2020
    Brief amicus curiae of Intel Corp. filed. VIDED.
  31. Dec 02 2020
    Brief amicus curiae of Askeladden L.L.C. filed. VIDED
  32. Dec 02 2020
    Brief amici curiae of Engine Advocacy and Electronic Frontier Foundation filed. VIDED.
  33. Dec 02 2020
    Brief amici curiae of Administrative, Constitutional & Intellectual Property Law Professors filed. VIDED.
  34. Dec 02 2020
    Amicus brief of Administrative, Constitutional & Intellectual Property Law Professors not accepted for filing. (Dupilicate submission) (December 07, 2020)
  35. Dec 02 2020
    Brief amicus curiae of The Intellectual Property Law Association of Chicago filed. VIDED.
  36. Dec 02 2020
    Brief amicus curiae of Apple Inc. in support of neither party filed. VIDED.
  37. Dec 02 2020
    Brief amicus curiae of High Tech Inventors Alliance filed. VIDED.
  38. Dec 02 2020
    Brief amicus curiae of Niskanen Center filed. VIDED.
  39. Dec 02 2020
    Brief amicus curiae of eComp Consultants filed. VIDED.
  40. Dec 02 2020
    Brief amici curiae of Computer & Communications Industry Association, et al. filed. VIDED.
  41. Dec 02 2020
    Brief amicus curiae of Jason V. Morgan filed (in 19-1434).
  42. Dec 02 2020
    Brief amicus curiae of American Intellectual Property Law Association filed. VIDED.
  43. Dec 01 2020
    Brief amicus curiae of Professor John Harrison in support of neither party filed. VIDED.
  44. Dec 01 2020
    Brief amici curiae of Acushnet Company and Roger Cleveland Golf Inc. filed. VIDED.
  45. Dec 01 2020
    Brief amicus curiae of Professor Andrew Michaels in support of neither party filed. VIDED.
  46. Dec 01 2020
    Brief amicus curiae of Coalition Against Patent Abuse in support of neither party filed. VIDED.
  47. Nov 25 2020
    Opening brief of United States filed. VIDED.
  48. Nov 25 2020
    Opening brief of Smith & Nephew, Inc., et al. filed. VIDED.
  49. Nov 09 2020
    Motion to dispense with printing the joint appendix filed by the United States GRANTED. VIDED.
  50. Nov 03 2020
    Blanket Consent filed by Petitioner, United States
  51. Oct 29 2020
    Blanket Consent filed by Respondent, Arthrex, Inc.
  52. Oct 28 2020
    Blanket Consent filed by Respondent, Smith & Nephew, Inc., et al.
  53. Oct 23 2020
    Motion to dispense with printing the joint appendix filed by the United States. VIDED.
  54. Oct 21 2020
    Petitioners 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.
  55. Oct 13 2020
    Petition 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.
  56. Oct 13 2020
    Because 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.”
  57. Oct 05 2020
    DISTRIBUTED for Conference of 10/9/2020.
  58. Aug 12 2020
    DISTRIBUTED for Conference of 9/29/2020.
  59. Jul 29 2020
    Brief amicus curiae of Askeladden L.L.C. filed.
  60. Jul 29 2020
    Brief amicus curiae of The New York Intellectual Property Law Association filed. VIDED.
  61. Jul 24 2020
    Response to petition from respondent Arthrex, Inc. filed. VIDED.
  62. Jul 23 2020
    Brief of respondents Smith & Nephew, Inc., et al. filed. VIDED
  63. Jul 22 2020
    Blanket Consent filed by Respondent, Polaris Innovations Limited VIDED
  64. Jul 20 2020
    Blanket Consent filed by Respondents, Smith & Nephew, Inc., et al.VIDED
  65. Jul 20 2020
    Blanket Consent filed by Respondent, Arthrex, Inc.VIDED
  66. Jul 20 2020
    Blanket Consent filed by Petitioner, United States VIDED
  67. Jun 25 2020
    Petition for a writ of certiorari filed. (Response due July 29, 2020)