July 30, 2020 - Substantive Orders Update

Order of Interest – Another Motion to Reinstate Oral Argument

Federal Circuitry tracks important unreported orders and highlights those that may be of interest to practitioners before the Court.

Case: Anacor Pharmaceuticals, Inc. v. FlatWing Pharmaceuticals, LLC, Nos. 2019-2264, -2265, -2266, -2267

Originating tribunal: Patent Trial and Appeal Board

Date: July 29, 2020

Panel: Per curiam (will be updated once panel is disclosed) **Aug. 5 update: Panel was Judges Lourie, O'Malley, and Chen. Judges O'Malley and Chen (with Judge Bryson) were on the panel that granted the earlier motion to reinstate oral argument in a different case.

Result: Motion to reinstate oral argument denied

As readers are aware and as we noted in earlier posts, the Federal Circuit has been removing many cases from its telephonic argument calendar during the COVID-19 pandemic—particularly with cases originating from the PTAB. A few months ago, the Federal Circuit granted a motion to reinstate oral argument in an appeal; the motion explained that the argument would be the first Federal Circuit oral argument for a junior, diverse attorney. On the other side of that appeal was the government, which stated that it “does not take any position on the motion” and “respects” the “appellant’s interest in arguing the case.” Many in the bar applauded the efforts of the movant there, as well as the decision by the Court to reinstate the oral argument. Having once been a junior diverse attorney, I remember having supportive clients and mentors give me early opportunities to argue and now try to make similar opportunities available to those more junior.

Yesterday, the Federal Circuit denied a similar motion to reinstate an oral argument. Like the prior motion, this one noted that granting it would promote diversity in the profession and give a junior lawyer his first oral argument opportunity. Unlike the prior motion, however, this one was opposed. The other side was not the government, but a private party. The party contended that oral argument was unnecessary to resolve the case and would impose additional litigation costs on the parties. In opposing, the party noted that counsel could instead seek pro bono opportunities to gain argument experience.

Ultimately, since the order doesn’t explain its ruling, we cannot know why the Court reinstated oral argument in one case but denied it in another. It may be that the Court is more willing to grant such motions if they are unopposed—when both the appellant and the appellee are willing to bear the time and expense for the junior attorney to argue the case. Or it may relate to the timing of the request for reinstatement. Here, the request was made eight days after the Court cancelled oral argument, which was just two weeks before the oral argument had been scheduled. In the earlier case in which argument was reinstated, the request was made just three days after argument had been cancelled, which was over three weeks before the original argument date. Whatever the reason, it is noteworthy that clients, law firms, and the Court have shown a willingness to support early argument opportunities for junior lawyers.