Uniloc 2017 LLC v. Google LLC (Fed. Cir. 2020) (Appeal Nos. 19-2277 and 19-2307)
Conventional wisdom is now that the Supreme Court will grant certiorari in Arthrex on the questions of (1) whether a PTAB judge is a principal Officer under the U.S. Constitution and if so (2) what result?
In this pair of pending inter partes review appeals, the Federal circuit has agreed with the patentee that the proper course of action at this point is to wait for a resolution of Arthrex:
Uniloc 2017 LLC moves to stay the above-captioned appeals pending final resolution of the Supreme Court’s review of Arthrex, Inc. v. Smith & Nephew, Inc, 941 F.3d 132 (Fed. Cir. 2019), reh’g denied 953, F.3d 760 (Fed. Cir. 2020). Google LLC opposes the motions. . . . The motions are granted.
UnilocStay. These cases related to U.S. Patent No. 7,853,000 and 7,804,948 (most of the claims found unpatentable by the PTAB).
The Federal Circuit is not the first-mover in this situation. The cases remanded to the PTAB on Arthrex grounds have all been administratively stayed pending resolution of Arthrex. And, the US Gov’t has filed an omnibus petition to the Supreme Court. Uniloc explains in its stay petition:
Remand to the PTO may ultimately be unnecessary, and cases that have already been remanded are being held in abeyance pending the Supreme Court’s review of Arthrex. Accordingly, Uniloc requests that this appeal be stayed pending resolution of the Supreme Court’s review of Arthrex, including resolution of Petitions for Writ of Certiorari.
UnilocStayPetition. Google opposed the stay — arguing, inter alia, that Uniloc had waived its Arthrex argument.
Solar-Somohano
19-2414/20-1245:1406 CAFC
why you suppressing the truth
Here the TPAB and the CAFC is it’s own worst enemy so far as ‘saving’ the IPR statutory scheme from itself. IMHO, in the universe of administrative courts the PTAB would have a better argument if it were MORE judge like not LESS judge like which the CAFC held in order to skirt the APJ issue and ‘save’ the statute re the appointments clause issue. Of course if the PTAB officers were more judge like we would assume that the TPAB could be policed by CAFC to be more ‘court’ like. The elephant in the room being whether TPAB will grant comity and administrative estoppel with the dual jurisdiction of the Art III courts. You know, like ALL the other administrative courts do when there are issues implicating dual jurisdiction. On this issue, PTAB is a gigantic outlier, completely rouge court. Of course, even then this ducks the issue of who sits by statute on the TPAB.
This is fantastic. The infringement cases against the biggest corporations on the planet can proceed in district courts, where they will have a full and fair opportunity to challenge the validity of the patents. Not only is the PTAB unconstitutional, it is redundant and unnecessary.
Not necessarily. Many district courts [other than the new reportedly patent litigation paradise of WDTX] are staying civil case jury trials due to the Covis-19 epidemic, and of course if validity is a major issue the patent owner will want a jury trial. Also, this is a stay of Fed. Cir. appeals from IPRs, not a stay of IPRs themselves. Few judges are going to put themselves through the potentially useless and avoidable work of a full jury trial patent suit if all of the sued-on claims have been held invalid in an IPR awaiting appeal and the Sup. Ct. takes cert.
Sorry Josh, but with complete confidence, SCOTUS will make a dogs breakfast of the whole thing and make patent law an even redder red headed step child of administrative law. Getting Thomas to admit that Oil States was wrongly decided is going to be a huge lift.
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