`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________________________________
`
`WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION
`(d/b/a WABTEC CORPORATION)
`Petitioner,
`
`v.
`
`SIEMENS MOBILITY, INC.
`Patent Owner.
`________________________
`
`Case IPR2017-01669
`
`U.S. Patent No. 6,824,110
`________________________
`
`
`
`PATENT OWNER’S NOTICE REGARDING PENDING SUPREME
`COURT CASE WITH BEARING ON THIS IPR
`
`
`
`
`
`Patent Owner hereby provides notice that the constitutionality of inter partes
`
`review is being challenged in a case that is presently pending at the U.S. Supreme
`
`Court, Arthrex, Inc. v. Smith & Nephew, Inc. et al., Case No. 19-1458. On October
`
`13, 2020, the Supreme Court granted certiorari, and the case will be heard in early
`
`2021.1
`
`In that case, Arthrex argues that the inter partes review statute is
`
`unconstitutional in its current form. More particularly, Arthrex contends that the
`
`statutory provisions for appointment of administrative patent
`
`judges are
`
`unconstitutional and that the remaining provisions governing inter partes review
`
`are not severable from those provisions. Those remaining provisions include 35
`
`U.S.C. § 318(b), the provision authorizing the Director to issue a certificate of
`
`cancellation following a final determination of unpatentability.
`
`Should the Supreme Court rule in Arthrex’s favor and find the provisions
`
`governing inter partes review unconstitutional, the Director will lack authority to
`
`cancel any claims of the ’110 Patent. Any such action would be reviewable in court
`
`under the Administrative Procedure Act. Because the Supreme Court is expected to
`
`render a decision within a relatively short time, Patent Owner submits that
`
`prudence and fundamental fairness dictate that the Director refrain from issuing
`
`
`1 Petitioner withdrew from the appeal, and the Director of the U.S.P.T.O.
`intervened. Patent Owner has maintained the original case caption from the IPR
`for this Notice.
`
`1
`
`
`
`any cancellation certificate regarding the ’110 Patent until the Supreme Court has
`
`ruled in Arthrex.
`
`
`
`Respectfully submitted,
`
`
`
` /Scott L. Bittman/
`Jeffrey D. Sanok (Reg. No. 32,169)
`Mark M. Supko (pro hac vice)
`Vincent J. Galluzzo (Reg. No. 67,830)
`CROWELL & MORING LLP
`1001 Pennsylvania Avenue, NW
`Washington, D.C. 20004-2595
`Tel.: (202) 624-2500
`jsanok@crowell.com
`msupko@crowell.com
`vgalluzzo@crowell.com
`
`Scott L. Bittman (Reg. No. 55,007)
`CROWELL & MORING LLP
`590 Madison Avenue, 20th Floor
`Tel.: (212) 895-4223
`sbittman@crowell.com
`
`Counsel for Patent Owner Siemens
`Mobility, Inc.
`
`
`
`Dated: December 4, 2020
`
`
`
`By:
`
`
`
`
`
`2
`
`
`
`
`
`Certificate of Service
`
`The undersigned hereby certifies that on December 4, 2020, a true and
`
`correct copy of the foregoing document was served by email on the following
`
`counsel of record for Petitioner and for the Intervenor on Appeal:
`
`For Petitioner:
`
`
`
`Jason A. Engel (Reg. No. 51,654)
`Alan L. Barry (Reg. No. 30,819)
`Benjamin E. Weed (Reg. No. 65,939)
`Erik J. Halverson (Reg. No. 73,552)
`K&L GATES LLP
`70 W. Madison Street, Suite 3100
`Chicago, IL 60602
`jason.engel.ptab@klgates.com
`alan.barry@klgates.com
`benjamin.weed.ptab@klgates.com
`tina.thomas@klgates.com
`erik.halverson@klgates.com
`
`
`For Intervenor:
`
`Thomas W. Krause
`Farheena Y. Rasheed
`Peter J Sawert
`Associate Solicitor Office of the Solicitor
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, Virginia 22313
`thomas.krause@uspto.gov
`farheena.rasheed@uspto.gov
`peter.sawert@uspto.gov
`
`
` /Scott L. Bittman/
`Scott L. Bittman (Reg. No. 55,007)
`CROWELL & MORING LLP
`
`
`
`3
`
`
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