Orders of Interest Roundup, Arthrex Style

Morrison & Foerster LLP - Federal Circuitry

Morrison & Foerster LLP - Federal Circuitry

At Federal Circuitry blog, we like to check in once in a while on what the Federal Circuit is doing in its orders that don’t get posted on the public website. Those orders often offer nuggets about practice at the Federal Circuit and sometimes even give insight into more substantive issues. So below we flag a few orders that caught our eyes.

In looking at orders in the last month or so, we noticed a range of orders in pending cases following the Supreme Court’s certiorari grant in Arthrex (see Supreme Court to Review Arthrex: Big Deal or Ho Hum? and What does the Supreme Court’s Grant in Two Social Security Cases Have to Do with Arthrex?). In some, the Federal Circuit declined to halt proceedings even though Arthrex’s fate remains uncertain in the Supreme Court. For example, the Federal Circuit denied an opposed stay request by an appellant from an inter partes review in appeal No. 19‑2151. The movant was a petitioner who argued for vacatur under the Federal Circuit’s decision in Arthrex but acknowledged that Federal Circuit precedent foreclosed that argument. Although the movant argued that the Supreme Court’s review had the potential to change that precedent, a per curiam order denied the motion.

Along the same lines, in another per curiam order in appeal No. 20-1444, the Federal Circuit granted a patent owner’s motion to vacate and remand to the PTAB under Arthrex. Although the petitioner and the government opposed that relief, the Federal Circuit granted it less than a week after the parties had been notified of oral argument scheduling. Consistent with the stay denial in appeal No. 19‑2151, the Court treated the Federal Circuit’s Arthrex decision as dispositive despite the pending Supreme Court review.

In two other cases, however, the Federal Circuit stayed cases based on the cert. grant in Arthrex. Both those cases seem to differ from the above because they involve unsettled questions about the effect of Arthrex. Thus in appeal No. 20-1196, about a week before the scheduled oral argument, the Federal Circuit sua sponte canceled argument and ordered the case stayed pending the Supreme Court’s decision in Arthrex. The appeal was from the TTAB, not the PTAB, and the opening brief argued that Arthrex should apply to TTAB judges. And in appeal No. 19-2454, the Court granted the government’s unopposed stay request based on the Arthrex cert. grant and again canceled a scheduled oral argument. The appeal involved another unanswered question—whether the reasoning of Arthrex extends to the MSPB.

Looking at these cases together, the Court appears to be continuing to apply its settled precedent on Arthrex when that precedent squarely applies to the facts of a given case. But it may be less likely to extend that settled precedent to new facts until it receives further guidance from the Supreme Court.

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