March 1, 2021

Volume XI, Number 60


March 01, 2021

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February 26, 2021

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Setting the Stage: Court Sets Oral Argument in Arthrex Cases

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.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. 

1 See Motion of the United States For Divided Argument at 2. 

© 2020 Foley & Lardner LLPNational Law Review, Volume XI, Number 22



About this Author


Randy (Rand) Pummill is an associate in the Intellectual Property department with Foley & Lardner LLP. He is a member of the firm’s Mechanical & Electromechanical Technology Practice.

Prior to joining Foley, Rand worked as a senior engineer at an internationally recognized consulting firm. In this position, Rand collaborated with other engineers to provide research proposals and technical reports to commercial clients, academic bodies and government entities. Rand developed computational modeling tools to predict the flow back of hydraulic fracturing fluid after a...

Daniel R. Shelton, Foley Lardner, Patent Reexamination Attorney, IP, Pharmaceuticals Lawyer
Senior Counsel

Daniel R. Shelton is an associate and intellectual property lawyer with Foley & Lardner LLP, where his practice includes the procurement of patents and related counseling in matters in the chemical arts. In addition, Mr. Shelton assists clients on reexamination and interference matters before the U.S. Patent Office, and advises clients on patent validity and freedom to operate inquiries. He is a member of the Chemical, Biotechnology & Pharmaceutical Practice.

Mr. Shelton assists clients on a technologically diverse range of matters,...

George Quillen, Patent interference litigator, appeals, prosecution, Foley and Lardner

George E. Quillin is a partner and intellectual property lawyer with Foley & Lardner LLP. Mr. Quillin litigates patent interferences and patent appeals, and counsels clients in patent prosecution. He is a member of the firm’s IP Litigation, Mechanical & Electromechanical Technologies and Appellate Practices.