Case: 20-1261   Document: 33    Page: 1   Filed: 05/06/2020




   United States Court of Appeals
       for the Federal Circuit
                 ______________________

      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
             ______________________

                       2020-1261
                 ______________________

     Appeal from the United States Patent and Trademark
 Office, Patent Trial and Appeal Board in No. IPR2018-
 01200.
                  ______________________

                     ON MOTION
                 ______________________

     JOSHUA GOLDBERG, Finnegan, Henderson, Farabow,
 Garrett & Dunner, LLP, Washington, DC, for appellant.
 Also represented by DANIEL CRAIG COOLEY, Reston, VA.
Case: 20-1261    Document: 33      Page: 2    Filed: 05/06/2020




 2    CATERPILLAR PAVING PRODUCTS    v. WIRTGEN AMERICA, INC.



    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, Patter-
 son 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.

 DYK, Circuit Judge.
                         ORDER
      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 in-
 ter partes review of Caterpillar Paving Products Inc.’s pa-
 tent. The Board held a hearing on July 30, 2019 and issued
 its final written decision on November 13, 2019. Caterpil-
 lar 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 demon-
 strated that Arthrex compels a remand. Unlike in prior
 cases in which this court has recently vacated and re-
 manded, Arthrex issued before the Board’s final written de-
 cision 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
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 CATERPILLAR PAVING PRODUCTS   v. WIRTGEN AMERICA, INC.      3



 cure a year’s worth of constitutional violations influencing
 the Board’s thinking and conclusions.” The court in Ar-
 threx considered and rejected that argument, expressly
 limiting its holding “to those cases where final written de-
 cisions 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) (“Be-
 cause the APJs were constitutionally appointed as of the
 implementation of the severance, inter partes review deci-
 sions going forward were no longer rendered by unconsti-
 tutional 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.


                                  FOR THE COURT

          May 6, 2020             /s/ Peter R. Marksteiner
            Date                  Peter R. Marksteiner
                                  Clerk of Court
