IN THE SUPREME COURT OF THE UNITED STATES
`_______________
`
`No. 19-1434
`
`UNITED STATES, PETITIONER
`
`v.
`
`ARTHREX, INC., ET AL.
`_______________
`
`No. 19-1452
`
`SMITH & NEPHEW, INC., ET AL., PETITIONERS
`
`v.
`
`ARTHREX, INC., ET AL.
`_______________
`
`No. 19-1458
`
`ARTHREX, INC., PETITIONER
`
`v.
`
`SMITH & NEPHEW, INC., ET AL.
`_______________
`
`ON WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
`_______________
`
`MOTION OF THE UNITED STATES FOR DIVIDED ARGUMENT
`_______________
`Pursuant to Rule 28.4 of the Rules of this Court, the Acting
`
`Solicitor General, on behalf of the United States, respectfully
`moves for divided argument in these cases. The Court has
`consolidated these three cases and allocated a total of one hour
`for oral argument. The United States moves to allocate oral
`
`
`_______________
`
`No. 19-1434
`
`UNITED STATES, PETITIONER
`
`v.
`
`ARTHREX, INC., ET AL.
`_______________
`
`No. 19-1452
`
`SMITH & NEPHEW, INC., ET AL., PETITIONERS
`
`v.
`
`ARTHREX, INC., ET AL.
`_______________
`
`No. 19-1458
`
`ARTHREX, INC., PETITIONER
`
`v.
`
`SMITH & NEPHEW, INC., ET AL.
`_______________
`
`ON WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
`_______________
`
`MOTION OF THE UNITED STATES FOR DIVIDED ARGUMENT
`_______________
`Pursuant to Rule 28.4 of the Rules of this Court, the Acting
`
`Solicitor General, on behalf of the United States, respectfully
`moves for divided argument in these cases. The Court has
`consolidated these three cases and allocated a total of one hour
`for oral argument. The United States moves to allocate oral
`
`
`
`2
`argument time as follows: 15 minutes for the United States,
`petitioner in No. 19-1434; 15 minutes for petitioners in No. 19-
`1452; and 30 minutes for petitioner in No. 19-1458. Counsel for
`the other parties have authorized us to state that they agree with
`that allocation of argument time. Granting this motion would not
`require the Court to enlarge the overall time for argument.
`
`1.
`The Patent Act of 1952, 35 U.S.C. 1 et seq., establishes
`the United States Patent and Trademark Office (USPTO) as an
`executive agency within the United States Department of Commerce
`“responsible for the granting and issuing of patents and the
`registration of trademarks.” 35 U.S.C. 2(a)(1); see 35 U.S.C.
`1(a). The Patent Trial and Appeal Board (Board) is an
`administrative tribunal within the USPTO that conducts several
`kinds of patent-related administrative adjudications, including
`appeals from adverse decisions of patent examiners on patent
`applications and in patent reexaminations; derivation proceedings;
`and inter partes and post-grant reviews. 35 U.S.C. 6(a) and (b).
`Its final decisions may be appealed to the Federal Circuit.
`35 U.S.C. 141(c), 144, 319.
`
`The Board consists of the USPTO’s Director, the Deputy
`Director, the Commissioners for Patents and Trademarks, and
`“administrative patent judges.” 35 U.S.C. 6(a). Administrative
`patent judges, of whom there are currently more than 250, are
`“persons of competent legal knowledge and scientific ability who
`
`
`
`
`
`3
`are appointed by the Secretary [of Commerce], in consultation with
`the Director.” Ibid. Like other “[o]fficers and employees” of
`the USPTO, most administrative patent judges are “subject to the
`provisions of title 5, relating to Federal employees.” 35 U.S.C.
`3(c). Under those provisions, members of the civil service may be
`removed “only for such cause as will promote the efficiency of the
`service.” 5 U.S.C. 7513(a).
`
`2.
`In the decision below, the Federal Circuit held that
`administrative patent judges are principal officers for purposes
`of the Appointments Clause, U.S. Const. Art. II, § 2, Cl. 2, and
`therefore must be appointed by the President with the advice and
`consent of the Senate. Pet. App. 6a-22a. The court of appeals
`therefore held that the statutorily prescribed method of
`appointing administrative patent judges -- by the Secretary of
`Commerce acting alone -- violates the Appointments Clause. Id. at
`22a; see 35 U.S.C. 6(a).
`
`To cure the putative constitutional defect that it
`identified, the court of appeals held that the restrictions on
`removal imposed by 5 U.S.C. 7513(a) cannot validly be applied to
`administrative patent judges, and that the application of those
`restrictions should be severed so that the judges are removable at
`will. Pet. App. 22a-29a. “Because the Board’s decision in this
`case was made by a panel of [administrative patent judges] that
`were not constitutionally appointed at the time the decision was
`
`
`
`
`
`4
`rendered,” however, the court vacated the Board’s decision,
`remanded for “a new hearing” before the Board, and directed “that
`a new panel of [administrative patent judges] must be designated
`to hear the [proceeding] anew on remand.” Id. at 29a, 33a.
`
`3.
`On October 13, 2020, this Court granted the government’s
`petition for a writ of certiorari to review the Federal Circuit’s
`decision, as well as two additional petitions filed by the private
`parties in the case. See United States v. Arthrex, Inc., No. 19-
`1434; Smith & Nephew, Inc. v. Arthrex, Inc., No. 19-1452; Arthrex,
`Inc. v. Smith & Nephew, Inc., No. 19-1458. The Court has agreed
`to consider: (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. On October 21, 2020, the Court
`established a briefing schedule under which petitioners in Nos.
`19-1434 and 19-1452 each filed opening briefs, addressing the first
`question presented, on November 25, 2020; petitioner in No. 19-
`1458 shall file a consolidated opening brief and response brief,
`addressing both questions, on December 23, 2020; petitioners in
`Nos. 19-1434 and 19-1452 shall each file a consolidated response
`and reply brief on January 22, 2021; and petitioner in No. 19-1458
`shall file a reply brief, pursuant to Rule 25.3 of this Court.
`
`
`
`
`
`5
`The allotment of oral argument time proposed by this motion
`
`accords with the Court’s briefing schedule by evenly dividing the
`default 30 minutes of argument time allotted to one side of a case
`between petitioners in Nos. 19-1434 and 19-1452 and allotting the
`full 30 minutes of argument time for the other side to petitioner
`in No. 19-1458. We believe that dividing the argument time for
`one side between the United States and the petitioners in No. 19-
`1452 would be of material assistance to the Court. The United
`States has a substantial interest in this case, because it concerns
`the constitutionality of an Act of Congress, the internal
`operations of the Executive Branch, and the validity of the Board’s
`decision in this case, as well as dozens of other Board decisions
`that the Federal Circuit has vacated on the basis of the decision
`below. See, e.g., Pet. at 1-27, Iancu v. Luoma, No. 20-74 (filed
`July 23, 2020). Petitioners in No. 19-1452 also have a substantial
`interest in this case because they prevailed in the Board
`proceeding that was subject to the Federal Circuit’s decision in
`this case, and can offer the Court a distinct perspective as the
`petitioners in those administrative proceedings. The government
`accordingly requests that the Court grant the motion for divided
`argument.
`
`Respectfully submitted.
`
`
`
`
`DECEMBER 2020
`
`JEFFREY B. WALL
` Acting Solicitor General
`
`
`
`
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