Motion of United States To Stay Proceedings or Extend Its Time To Respond
Motion of United States To Stay Proceedings or Extend Its Time To Respond
VIRNETX INC., )
)
Appellant, )
)
v. ) No. 19-1671
)
CISCO SYSTEMS, INC., )
)
Appellee. )
The United States hereby requests that the Court stay proceedings in this case
pending resolution of a petition for rehearing en banc in Arthrex Inc. v. Smith and
Nephew, Inc., No. 18-2140 (Fed. Cir.). In the alternative, the United States requests a
30-day extension of the current deadline for the United States to intervene in this case
and respond to the appellant’s motion for remand. Counsel for the parties have
indicated that they do not oppose this motion. The grounds for this motion are as
follows:
1. This is an appeal from a decision of the Patent Trial and Appeal Board
(“Board”).
2. On October 31, 2019, this Court issued a decision in Arthrex holding that an
administrative patent judges (APJs), identifying a cure for the constitutional problem,
Case: 19-1671 Document: 25 Page: 2 Filed: 11/13/2019
and remanding the Board’s decision for a new hearing. The deadline for the
2019. See Fed. R. App. P. 35(c), 40(a)(1). The mandate in Arthrex will issue no earlier
this case on the basis of the Court’s holding in Arthrex regarding an Appointments
Clause defect. On Friday, November 8, 2019, this Court issued an order certifying the
United States’ request to intervene and any response by the United States … to the
motion is due no later than ten days from the date of filing of this order.” The United
States’ motion to intervene and any response to the motion are thus currently due
4. 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
§ 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. It would be inefficient and burdensome for the court and the
parties to engage in further proceedings in this case relating to the Arthrex decision
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until the en banc Court decides what to do with that decision. Accordingly, the Court
should stay further proceedings in this case relating to Arthrex, including the United
5. In the alternative, the United States hereby requests that the deadline to
intervene in this case and provide a response to the motion for remand be extended
by 30 days, from November 18, 2019, to and including December 18, 2019.
Responsibility for deciding whether the United States will intervene in this appeal is
vested in the Solicitor General. See 28 C.F.R. § 0.20(c). The decision requires review
of the case and consultation with interested components of the Department of Justice
and the U.S. Patent and Trademark Office. This Court typically allows 30 days for the
Solicitor General to inform the Court whether the United States will exercise its
intervention authority. This period reflects the time necessary for a decision to be
6. The United States has notified counsel for the appellant and the appellee of
its intention to file this motion. Counsel for the parties have indicated that they do
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Respectfully submitted,
SCOTT R. MCINTOSH
(202) 514-4052
MELISSA N. PATTERSON
(202) 514-1201
/s/ Courtney L. Dixon
COURTNEY L. DIXON
(202) 353-8189
Attorneys, Appellate Staff
Civil Division
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Room 7246
Washington, D.C. 20530
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Case: 19-1671 Document: 25 Page: 5 Filed: 11/13/2019
VIRNETX INC., )
)
Appellant, )
)
v. ) No. 19-1671
)
CISCO SYSTEMS, INC., )
)
Appellee. )
DECLARATION OF COUNSEL
1. For the reasons set out below, if the Court denies the government’s request
for a stay, the government respectfully requests a 30-day extension, to and including
December 18, 2019, of the time for filing notice regarding intervention in this appeal
motion for remand. The Solicitor General has responsibility for deciding whether the
United States will intervene in this appeal. See 28 C.F.R. § 0.20(c). That decision
Justice and the U.S. Patent and Trademark Office. Because of the importance of the
consultation and review process will take longer than the ten days provided in the
Court’s order.
3. For the foregoing reasons, good cause exists for extending the deadline for
filing the government’s notice regarding intervention in this appeal and response to
the motion by 30 days, to and including December 18, 2019. See Federal Circuit Rule
26(b)(5). Because the Court issued its order providing the United States only ten days
circumstances also exist to grant this motion. See Federal Circuit Rule 26(b)(1).
I declare under penalty of perjury that the foregoing is true and correct.
CERTIFICATE OF COMPLIANCE
I hereby certify that the government’s motion for a stay complies with the
contains 612 words, excluding the parts of the document exempted by Federal Rule
CERTIFICATE OF SERVICE
I hereby certify that on November 13, 2019, I electronically filed the foregoing
motion with the Clerk of the Court by using the appellate CM/ECF system. I certify
that the participants in this appeal are represented by registered CM/ECF users and