`
`NOTE: This order is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`VIRNETX INC.,
`Appellant
`
`v.
`
`CISCO SYSTEMS, INC.,
`Appellee
`______________________
`
`2019-1725
`______________________
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. 95/001,792.
`______________________
`
`ON MOTION
`______________________
`
`
`
`O R D E R
`VirnetX Inc. submits a motion to vacate the final writ-
`ten decision of the Patent Trial and Appeal Board and re-
`mand this case in light of this court’s recent decision in
`Arthrex, Inc. v. Smith & Nephew, Inc., No. 2018-2140, 2019
`WL 5616010 (Fed. Cir. Oct. 31, 2019). The court also con-
`strues the motion as a notice that VirnetX is challenging
`the Board’s decision as rendered by a panel of administra-
`tive patent judges who were appointed in violation of the
`Appointments Clause of the Constitution.
`
`
`
`
`
`
`
`Case: 19-1725 Document: 23 Page: 2 Filed: 11/26/2019
`
`2
`
`
`
`VIRNETX INC. v. CISCO SYSTEMS, INC.
`
` Upon notice of the fact that “a party questions the con-
`stitutionality of an Act of Congress in a proceeding in which
`the United States . . . is not a party,” the clerk of this court
`must “certify that fact to the Attorney General.” Fed. R.
`App. P. 44(a); see also 28 U.S.C. § 2403(a) (“In any action
`. . . in a court of the United States to which the United
`States . . . is not a party, wherein the constitutionality of
`any Act of Congress affecting the public interest is drawn
`in question, the court shall certify such fact to the Attorney
`General, and shall permit the United States to intervene
`. . . for argument on the question of constitutionality.”).
`Upon consideration thereof,
`IT IS ORDERED THAT:
`(1) Notice of VirnetX’s constitutional challenge is
`hereby certified to the Attorney General.
`(2) The United States’ request to intervene and any re-
`sponse by the United States to the motion is due no later
`than December 27, 2019. Any reply in support of the mo-
`tion is due no later than January 2, 2020.
`(3) The briefing stay remains in place.
` FOR THE COURT
`
`
`
`
`
`
`
`
`
`
`
`
` November 26, 2019 /s/ Peter R. Marksteiner
` Date
` Peter R. Marksteiner
` Clerk of Court
`
`
`s29
`
`cc: United States Attorney General
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
