Here is an update on recent en banc activity at the Federal Circuit in patent cases. Highlights include one new petition, a response to a petition, a request from the Federal Circuit for a response, and a denial of a petition.
A new en banc petition was filed in HZNP Finance Limited v. Actavis Laboratories UT, Inc. In its petition, HZNP asks the en banc court to review the following question:
“Whether the ‘basic and novel properties’ identified in connection with the transitional phrase ‘consisting essentially of’ must independently satisfy the requirements of 35 U.S.C. § 112, ¶ 2 and the accompanying ‘reasonable certainty’ standard . . ., even though (1) the plain language of 35 U.S.C. § 112, ¶ 2 restricts application of the definiteness standard to claim limitations, (2) the ‘basic and novel properties’ of the invention are not claim limitations, i.e., a product need not satisfy the ‘basic and novel properties’ of the invention to infringe, and (3) no court pre-Nautilus or post-Nautilus, prior to the District Court’s ruling, has ever applied the definiteness standard of 35 U.S.C. § 112, ¶ 2 to the ‘basic and novel properties.’”
A new response was filed in The Chamberlain Group, Inc. v. Techtronic Industries Co. In its response, Techtronic argues that “[t]he panel correctly applied the Alice framework and this Court’s precedent to hold the asserted claims ineligible under Section 101. En banc review would neither resolve a disagreement among the Court’s decisions nor answer any exceptionally important question.”
The court invited a response to the petition filed in Bedgear, LLC v. Fredman Bros. Furniture Co., in which Bedgear asserted that “[e]n banc review is necessary to secure and maintain uniformity in the Court’s decisions in all pending cases that raise the same important constitutional question whether the appointment of [Administrative Patent Judges] violated the Constitution and, if it did, what the proper remedy for that constitutional harm should be.”
The Federal Circuit denied the petition for rehearing en banc in Campbell Soup Company v. Gamon Plus, Inc., which presented a question regarding review of a PTAB determination of nonobviousness of a design patent.
The Federal Circuit did not grant any en banc petitions.