Caterpillar Paving Products Inc. v. Wirtgen America, Inc., Appeal No. 2020-1261 (Fed Cir., May 6, 2020).

On May 5, 2020, the Federal Circuit issued a precedential order holding that IPR petitioners cannot seek the Arthrex do-over. One day later, the Federal Circuit placed another limitation on the applicability of the Arthrex doctrine.

The Arthrex decision issued prior the final written decision in an IPR against Caterpillar’s patent. According to the court, “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.’” Slip op. at 2-3.

The Federal Circuit was not persuaded, and explained that “[t]he court in Arthrex considered and rejected that argument, expressly limiting its holding ‘to those cases where final written decisions were issued.’” Slip op. at 3. The Federal Circuit thereby denied Caterpillar’s motion for vacatur and remand.