`_______________
`
`No. 20-74
`
`UNITED STATES OF AMERICA, PETITIONER
`
`v.
`
`IMAGE PROCESSING TECHNOLOGIES LLC, ET AL.
`_______________
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
`_______________
`
`MOTION OF THE UNITED STATES FOR PARTIAL DISMISSAL
`OF THE CONSOLIDATED PETITION FOR A WRIT OF CERTIORARI
`ONLY WITH RESPECT TO THE JUDGMENT OF THE COURT OF APPEALS
`IN IMAGE PROCESSING TECHNOLOGIES LLC V. SAMSUNG ELECTRONICS CO.,
`NOS. 2018-2156, 2019-1408, and 2019-1485
`_______________
`Pursuant to Rule 46.2(a) of the Rules this Court, the Acting
`
`Solicitor General, on behalf of the United States, respectfully
`moves to dismiss in part the government’s consolidated petition
`for a writ of certiorari only as to the judgment of the court of
`appeals in Image Processing Technologies LLC v. Samsung
`Electronics Co., Nos. 2018-2156, 2019-1408, and 2019-1485. The
`government does not move to dismiss the petition for a writ of
`certiorari with respect to any of the other judgments of the court
`of appeals that are encompassed by the consolidated petition filed
`under Rule 12.4; the government respectfully submits that the
`petition should be held with respect to all of those other
`judgments. The government filed the consolidated petition for a
`
`
`
`2
`writ of certiorari on July 23, 2020, and the petition is currently
`pending before the Court. No fees are currently due the Clerk.
`Petitioner has assumed the costs with respect to the court of
`appeals’ judgment in Image Processing Technologies LLC, supra. No
`party to that judgment opposes this motion.
`
`1.
`These cases concern whether, under the Appointments
`Clause, U.S. Const. Art. II, § 2, Cl. 2, administrative patent
`judges of the United States Patent and Trademark Office (USPTO)
`are principal officers who must be appointed by the President with
`the advice and consent of the Senate, or “inferior Officers” whose
`appointment Congress may vest in a department head. In Arthrex,
`Inc. v. Smith & Nephew, Inc., 941 F.3d 1320 (2019), petitions for
`cert. pending, Nos. 19-1434 (filed June 25, 2020), 19-1452 (filed
`June 29, 2020), and 19-1458 (filed June 30, 2020), the Federal
`Circuit held that administrative patent judges are principal
`officers and that the statutorily prescribed method of appointing
`administrative patent judges -- by the Secretary of Commerce acting
`alone, see 35 U.S.C. 6(a) -- violates the Appointments Clause.
`941 F.3d at 1327-1335.
`
`In each of the judgments encompassed by the government’s
`consolidated petition in this case, the court of appeals vacated
`one or more decisions of the Patent Trial and Appeal Board (Board)
`based on Arthrex and remanded for further proceedings. On July
`23, the government filed a consolidated petition under Rule 12.4
`
`
`
`
`
`3
`requesting that the Court hold the consolidated petition pending
`this Court’s disposition of the government’s petition for a writ
`of certiorari in Arthrex, and any further proceedings in this
`Court, and then dispose of the government’s consolidated petition
`as appropriate.
`2.
`Since the filing of the government’s consolidated
`petition, the private parties to one of the Federal Circuit’s
`judgments encompassed by the consolidated petition -- Image
`Processing Technologies LLC v. Samsung Electronics Co.,
`Nos. 2018-2156, 2019-1408, and 2019-1485 -- have settled their
`patent dispute and jointly moved to terminate the proceedings
`before the Board (on remand from the court of appeals) concerning
`the validity of the relevant patent claims. The Board has granted
`that request and terminated the post-remand administrative
`proceedings. In light of that termination, the government no
`longer seeks review of the court of appeals’ order vacating the
`Board’s prior decisions in those particular proceedings. The
`government accordingly requests that the consolidated petition be
`dismissed in part, solely with respect to the court of appeals’
`judgment in Nos. 2018-2156, 2019-1408, and 2019-1485.
`
`The government’s consolidated petition for a writ of
`certiorari in this case also seeks review of 38 additional orders
`of the Federal Circuit. See Pet. 11-19, 23-26; Pet. App. 3a-84a.
`The government does not move to dismiss the consolidated petition
`
`
`
`
`
`4
`as to the court of appeals’ judgments in any of those other cases.
`The government continues to request that the Court hold the
`consolidated petition as to all of those other cases pending the
`disposition of the government’s petition in Arthrex, No. 19-1434,
`and any further proceedings in this Court, and then dispose of the
`consolidated petition as appropriate.*
`
`Respectfully submitted.
`
`
`
`
`
`SEPTEMBER 2020
`
`JEFFREY B. WALL
` Acting Solicitor General
`
`
`*
`Because the particular judgment of the court of appeals
`as to which the government seeks partial dismissal happens to be
`the case listed in the short caption of the government’s
`consolidated petition, it may be appropriate to revise the case’s
`short caption to refer to one of the other 38 judgments of the
`court of appeals encompassed by the consolidated petition. For
`example, the next case listed in the consolidated petition
`(corresponding to the Federal Circuit’s judgment in No. 2019-2315,
`Pet. App. 3a-4a) is captioned: Andrei Iancu, Under Secretary of
`Commerce for Intellectual Property and Director, U.S. Patent and
`Trademark Office v. Eugene H. Luoma, et al.
`
`
`
`