Government Indicates En Banc Petition Forthcoming for Arthrex

Government Intervenes to Thwart Arthrex Remands

As expected, the government has informed the Federal Circuit of its intention to seek en banc rehearing in Arthrex Inc. v. Smith & Nephew, Inc.  Having intervened in a number of cases seeking remand post-Arthrex the government has now moved to stay these proceedings pending its en banc petition.

In two filings this week (here) and (here), the government explains that:

" The United States intends to seek rehearing en banc in Arthrex. The United States hereby requests that proceedings in this case relating to Arthrex be stayed pending the Court’s disposition of the government’s forthcoming rehearing petition in that case. The government’s decision regarding intervention under 28 U.S.C. § 2403 in this case will be informed by any further review of this Court’s constitutional holding in Arthrex. Similarly, the propriety and scope of remands in any other cases on the basis of Arthrex will be affected by whether the Court grants rehearing in that case.

Based upon the recent dissenting views of at least judges Dyk and Newman in Bedgear LLC., v. Fredman Bros. Furniture Company, Inc., (here) it would seem that en banc review is quite likely.  Given the mess that has been created as to potential remands, the views on retroactivity expressed in Bedgear will likely be front-and-center.

In the meantime, I would not be surprised to see Congress propose a technical fix of its own.

Scott A. McKeown is an author of the Patents Post Grant