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.