Supreme Court of the United States · Official docket →
Arthrex, Inc. v. Smith & Nephew, Inc., et al.
Paid petition · United States Court of Appeals for the Federal Circuit, No. 2018-2140 · judgment May 27, 2022
Before the decision, about 4.1× the 4.1% base rate. The model weighted this up for counsel who has won certiorari before, a circuit split argued in the petition, and a dissent in the court below (flagged in the petition), and down for a business respondent.
Question presented
The Federal Vacancies Reform Act of 1998 (“FVRA”) establishes “the exclusive means for temporarily authorizing an acting official to perform the functions and duties” of a vacant presidentially appointed, Senate-confirmed office. 5 U.S.C. § 3347(a). The FVRA specifies which individuals are eligible to serve as acting officers and for how long. Id. §§ 3345, 3346. In this case, the U.S. Patent and Trademark Office (“PTO”) invoked its general delegation authority to adopt a succession plan that differs from the exclusive options set forth in the FVRA. The PTO’s Director is a presidentially appointed, Senate-confirmed officer. But the PTO’s Agency Organization Order 45-1 provides for the Commissioner for Patents to run the agency when the positions of Director and Deputy Director are both vacant. Pursuant to that order, Commissioner for Patents Andrew Hirshfeld, performing the functions and duties of the Director, denied review of a Patent Trial and Appeal Board ruling that invalidated Arthrex’s patent claims in an inter partes review. The question presented is: Whether the Commissioner for Patents’ exercise of the Director’s authority pursuant to an internal agency delegation violated the Federal Vacancies Reform Act. (i)
Counsel of record
For petitioner
Jeffrey Alan Lamken
MoloLamken LLP
For respondent
Elizabeth B. Prelogar
Solicitor General
Proceedings
- May 22 2023Petition DENIED.
- May 02 2023DISTRIBUTED for Conference of 5/18/2023.
- Apr 28 2023Reply of petitioner Arthrex, Inc. filed. (Distributed)
- Apr 12 2023Brief of Federal Respondent in opposition filed. VIDED.
- Apr 12 2023Brief of respondents Smith & Nephew, Inc. and ArthroCare Corp. in opposition filed.
- Feb 28 2023Motion to extend the time to file a response is granted and the time is further extended to and including April 12, 2023, for all respondents.
- Feb 27 2023Motion to extend the time to file a response from March 13, 2023 to April 12, 2023, submitted to The Clerk.
- Feb 09 2023Brief amicus curiae of Dr. Ron D. Katznelson filed.
- Feb 09 2023Brief amicus curiae of Fair Inventing Fund filed.
- Feb 09 2023Brief amicus curiae of Cato Institute filed.
- Jan 30 2023Motion to extend the time to file a response is granted and the time is extended to and including March 13, 2023, for all respondents.
- Jan 27 2023Motion to extend the time to file a response from February 9, 2023 to March 13, 2023, submitted to The Clerk.
- Jan 06 2023Petition for a writ of certiorari filed. (Response due February 9, 2023)
- Oct 28 2022Application (22A359) granted by The Chief Justice extending the time to file until January 8, 2023.
- Oct 26 2022Application (22A359) to extend the time to file a petition for a writ of certiorari from November 9, 2022 to January 8, 2023, submitted to The Chief Justice.