The U.S. Supreme Court has scheduled oral argument in the Arthrex cases (docket 19-1434) for March 1, 2021. And, as of January 11, 2021, the Court has accepted the oral argument time divisions proposed by the Acting Solicitor General. The proposal had received the quiet support of the other two parties in the cases, Smith & Nephew and Arthrex.1 Accordingly, the Court will allocate 15 minutes to the United States, 15 minutes to Smith & Nephew, and the remaining 30 minutes to Arthrex for each to make their case before the Justices.
In the Arthrex cases, the Court has agreed to consider two questions: (1) whether administrative patent judges are principal or inferior officers for purposes of the Appointments Clause; and (2) whether, if administrative patent judges are principal officers, the Federal Circuit properly cured any Appointments Clause defect by severing the application of 5 U.S.C. 7513(a) to those judges. In their initial merits briefs, the United States and Smith & Nephew have urged the Court either to hold administrative patent judges to be inferior officers or to uphold the remedy provided by the lower court. Arthrex, on the other hand, in its initial merits brief argued that administrative patent judges are principal officers and that any remedy to the current situation should be left to Congress to determine. Such a decision by the Court could have far-reaching consequences.
Before oral argument, consolidated response and reply briefs from Smith & Nephew and the United States are due on January 22, 2021. Arthrex may also submit a reply brief, due before February 21, 2021. Continue checking the PTAB Trial Insights Blog for analysis on these and future developments in the upcoming weeks.
1 See Motion of the United States For Divided Argument at 2.