As explained in the General Order in Cases Remanded Under Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019) (“General Order in Remanded Cases”), the United States Court of Appeals for the Federal Circuit (“Federal Circuit”) issued numerous Ordersinstructing the Patent Trial and Appeal Board (“Board”) to conduct proceedings on remand consistent with the Federal Circuit’s Arthrex decision.
To avoid burdening the Office and the parties until all appellate rights had been exhausted, the General Order in Remanded Cases wasissued, suspending the requirements of the Board’s Standard Operating Procedure 9 in cases remandedby the Federal Circuit underits Arthrex decision, and holding all such cases in administrative abeyance until the Supreme Court of the United States (“Supreme Court”) acted on a petition for certiorari or the time forfiling such petitions expired.
General Order Regarding Arthrex-Related Remands On June 21, 2021, the Supreme Court vacated the Federal Circuit’s judgmentin Arthrex, Inc. v. Smith & Nephew, Inc. and remandedto the Acting Director for him to decide whether to rehear the Board’s final written decision.
The Supreme Court subsequently granted petitions for certiorari in other cases in which the Federal Circuit remanded to the Board for proceedings consistent with the Federal Circuit’s Arthrex decision, vacated the Federal Circuit’s judgment in those cases, and remanded them for further consideration in light of United States v. Arthrex, Inc. See Iancu v. Luoma, No. 20-74 (June 28, 2021); Jancu v. Fall Line Patents, LLC, No. 20-853 (June 28, 2021); Hirshfeld v. Implicit, LLC, No. 20-1631 (Oct. 18, 2021).
Nowthat the Supreme Court has acted on petitions for certiorari in cases that were previously remandedto the Board under the Federal Circuit’s Arthrex decision, the General Order in Remanded Casesislifted.