22 thoughts on “Challenging all of the Arthrex Cases

  1. 6

    At least one cert-supporting amicus brief has been filed, by Askeladden LLC, but amicus briefs by known Constitutional law professors will have far more impact, and hopefully Dennis will be be analyzing them for us, especially which outcome they support.

    1. 6.1

      BTW, back when the titles of Board members were changed as part of patent statute changes from “Examiners in Chief” to “Administrative Patent Judges” I asked a senior member of the Board what that change meant? He replied that the only change he had noticed was that he could get a better table at a D.C. restaurant by making the reservation as “Judge ____.”

      1. 6.1.1

        Your point is evidence of a logical and legal fallacy (that the APJ’s are still nothing more than ‘super examiners’).

        It just is not so — and it is not at all helpful that you would want to make such an implication.

        1. 6.1.1.1

          Cannot you even resist misrepresenting an obvious humorous exchange into an imaginary position to attack?

          1. 6.1.1.1.1

            Maybe you should realize that your ‘humor’ is not very funny.

            And I have NO misrepresentation – or is that more of your ‘humor?’

          2. 6.1.1.1.2

            The obvious point of the APJs joke, if I have to spell it out, was that the APJs did not get a raise or other benefit when they got their new titles.

            1. 6.1.1.1.2.1

              It was a horrible joke and obfuscates the fact that their role is not that of an examiner (“in Chief” or otherwise).

              Obtuse? Is it deliberate?

            2. 6.1.1.1.2.2

              As for the Fed. Cir. judges votes re denying Fed. Cir. en banc review, the likelihood that it would have merely delayed the Sup. Ct. taking up and finally deciding this issue [after a lot of Fed. Cir. effort and dissention] seems like a good reason, even if unstated?

              1. 6.1.1.1.2.2.1

                Doubtful.

  2. 5

    My bet: cert granted. Moore reversed.

    1. 5.1

      … and the rationale…?

      1. 5.1.1

        Cert granted because it is a mess that the Scotus needs to sort out.

        Moore reversed because patents are only a public right now. Lots of worm words will be added. 6-3 opinion. Holding: claims are junk shi te that Congress set up a tribunal to trash and they have the right to do so.

        1. 5.1.1.1

          SCOTUS needing to do something has ZERO connection with them doing something.

          I was hoping for some actual rationale that may be found in a granted cert….

          1. 5.1.1.1.1

            anon, I’ve made my prediction.

            1. 5.1.1.1.1.1

              … and I was hoping for more.

              Like the legal foundation that such a prediction would rest on.

  3. 4

    My guess is that cert will be granted. I’m going to bet that the Scotus reverses Moore and says that they were already inferior officers invalidating those public right garbage things called claims.

  4. 3

    If a cert petition like this does not get the Supremes attention, it would be very surprising, with the top DOJ attorneys including the Solicitor on the cover and with “PARTIES TO THE PROCEEDING Petitioners ” being “the United States of America, which intervened in the court of appeals in Nos. 2018-2156, 2019-1408, 2019-1485, 2018-1768, 2019-1215, 2019-1216, 2019-1218, 2019-1293, 2019-1294, and 2019-1295, pursuant to 28 U.S.C. 2403(a); and Andrei Iancu, Under Secretary of Commerce for Intellectual Property and Director, U.S. Patent and Trademark Office, who intervened in the court of appeals in
    Nos. 2019-2315, etc, etc.,etc., etc.

    1. 3.1

      Yes; and will be interesting to see how many — and who — file briefs for and against the petition.

      We may all be witnesses to a record.

      Popcorn a-poppin’ . . . an’ butter at the ready.

  5. 2

    Is “80” enough — given that there was an ‘extension’ of the improperly appointed status to MORE THAN just IPRs recently?

    1. 2.1

      The additional impact on all patent application claim rejection appeals to the APJs of the same Board will surely be pointed out as well.

      1. 2.1.1

        …but are they any less of a necessary party to the “stunt” being pulled with this action?

        (Sorry, but “stunt” was the only word that came to mind, and I don’t mean it as harsh as it sounds, so I put it in quotes).

  6. 1

    (Sensible) omnibus ho!

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