June 23, 2021 - Substantive Orders Update

Early Hints About What Happens Next After Arthrex

Now that we have the Supreme Court’s big decision in Arthrex, which we wrote about here, many of us are wondering what the next steps will look like. We may know sooner rather than later. Today, the Federal Circuit issued a sua sponte order in pending appeals where one of the parties had appeared to raise an Appointments Clause challenge. The body of the short order reads:

(1) Within 14 days from the date of this order, the parties that raised an Appointments Clause challenge shall file a brief, not to exceed 10 pages double-spaced, explaining how they believe their cases should proceed in light of Arthrex. Responses from the other parties, including the United States Patent and Trademark Office, subject to the same length restrictions, are due within 14 days thereafter.

(2) All deadlines and proceedings are stayed.

Based on these orders, we could start to see some action from the Federal Circuit in currently pending appeals in about a month.

We also may get further news with the Supreme Court’s order list on Monday from tomorrow’s petition conference. That list may include orders granting, vacating, and remanding the many Federal Circuit decisions that had vacated and remanded Board decisions for new hearings under the Federal Circuit’s original Arthrex decision (now vacated). The United States filed several consolidated petitions for certiorari from those Federal Circuit decisions, which the Supreme Court has been holding. If those decisions are indeed returned to the Federal Circuit, it seems likely the Federal Circuit could issue similar orders to the above after recalling its mandates sending those cases back to the Patent Trial and Appeal Board.