Summary
denying a motion to vacate and remand based on Arthrex where the Board's decision issued in November 2019, after the opinion in Arthrex
Summary of this case from Corephotonics, Ltd. v. Apple Inc.Opinion
2020-1261
05-06-2020
CATERPILLAR PAVING PRODUCTS INC., Appellant v. WIRTGEN AMERICA, INC., Joseph Vogele AG, Appellees Andrei Iancu, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, Intervenor
Joshua Goldberg, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Washington, DC, for appellant. Also represented by Daniel Craig Cooley, Reston, VA. Ralph Wilson Powers, III, Sterne Kessler Goldstein & Fox, Washington, DC, for appellees. Also represented by Donald Banowit, Tyler Dutton, Jon Wright ; Mark Andrew Kilgore, Ryan D. Levy, Seth R. Ogden, Patterson Intellectual Property Law, PC, Nashville, TN. Monica Barnes Lateef, Office of the Solicitor, United States Patent and Trademark Office, Alexandria, VA, for intervenor. Also represented by Thomas W. Krause, Farheena Yasmeen Rasheed, Daniel Kazhdan.
Joshua Goldberg, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Washington, DC, for appellant. Also represented by Daniel Craig Cooley, Reston, VA.
Ralph Wilson Powers, III, Sterne Kessler Goldstein & Fox, Washington, DC, for appellees. Also represented by Donald Banowit, Tyler Dutton, Jon Wright ; Mark Andrew Kilgore, Ryan D. Levy, Seth R. Ogden, Patterson Intellectual Property Law, PC, Nashville, TN.
Monica Barnes Lateef, Office of the Solicitor, United States Patent and Trademark Office, Alexandria, VA, for intervenor. Also represented by Thomas W. Krause, Farheena Yasmeen Rasheed, Daniel Kazhdan.
Before Lourie, Dyk, and Reyna, Circuit Judges.
ORDER
Dyk, Circuit Judge.
At the behest of Wirtgen America, Inc., the Director of the United States Patent and Trademark Office, acting through the Patent Trial and Appeal Board, instituted inter partes review of Caterpillar Paving Products Inc.’s patent. The Board held a hearing on July 30, 2019 and issued its final written decision on November 13, 2019. Caterpillar has appealed and now moves to vacate and remand for a new hearing before a differently constituted panel in light of Arthrex, Inc. v. Smith & Nephew, Inc ., 941 F.3d 1320 (Fed. Cir. 2019) issued on October 31, 2019.
The court concludes that Caterpillar has not demonstrated that Arthrex compels a remand. Unlike in prior cases in which this court has recently vacated and remanded, Arthrex issued before the Board’s final written decision in this case. The Director and Wirtgen argue that the Board judges were constitutionally appointed as of the date that this court issued its decision in Arthrex and that no remand is required. Caterpillar contends that even if the panel members became constitutional immediately prior to issuing the final written decision, that "does not cure a year’s worth of constitutional violations influencing the Board’s thinking and conclusions." The court in Arthrex considered and rejected that argument, expressly limiting its holding "to those cases where final written decisions were issued." 941 F.3d at 1340. See also Arthrex, Inc. v. Smith & Nephew, Inc ., 953 F.3d 760, 764 (Fed. Cir. 2020) (Moore, J., concurring in denial of rehearing) ("Because the APJs were constitutionally appointed as of the implementation of the severance, inter partes review decisions going forward were no longer rendered by unconstitutional panels.").
Accordingly,
IT IS ORDERED THAT :
(1) The motion to vacate and remand is denied.
(2) Caterpillar’s opening brief is due within 30 days from the date of filing of this order.