Here is an update on recent en banc activity at the Federal Circuit in patent cases. Highlights include one new petition related to obviousness, one amicus brief in support of a petition related to transfer, one notice of supplemental authority related to expert testimony and a response to the notice, and the denial of two petitions. Here are the details.
One new petition was filed.
In Google LLC v. Koninklijke Philips N.V., Koninklijke Philips presented the following question:
- “Can a ‘general’ obvious-to-try theory predicated on the idea that a user ‘might’ benefit from a reference’s modification (which is not the theory argued below) be adopted on appeal without deference to the Board’s finding that the primary reference dissuades the proposed modification, such that a ‘general’ obvious-to-try assertion trumps all other non-obvious considerations?”
New Amicus Briefs
One new amicus brief was filed.
In In re Apple, Roku, Inc. filed an amicus brief arguing that “[t]his Court should grant Apple’s petition for rehearing en banc to ensure that § 1404(a)’s convenience factors are properly weighed and applied, as well as to prevent other courts from applying the same flawed Weatherford rule that is being applied by the Western District of Texas.”
New Letter Briefs Regarding Supplemental Authority
One set of letter briefs were filed.
In Columbia Sportswear North America, Inc. v. Seirus Innovative Accessories, Inc., Columbia Sportswear notified the court about the alleged relevance of the court’s decision in HVLPO2, LLC v. Oxygen Frog, LLC. In its letter brief, Columbia Sportswear seeks to persuade the court that the “HVLPO2 decision compels reconsideration and mandates a new trial here.” According to the letter brief, “the contested testimony ‘was not disclosed pursuant to expert discovery rules’ and ‘should only have been given . . . with the expert discovery necessary to . . . ensure the reliability and relevance of the testimony.’” Moreover, Columbia Sportswear argues that, as in HVLPO2, “the testimony went ‘to the central legal and technical question at trial,’ its admission was improper, and ‘there is no way to know’ its effect on the jury.”
Seirus filed a response to the notice of supplemental authority, arguing that “the HVLPO2 decision has no bearing in this case” because the testimony challenged by Columbia is not lay witness testimony. Rather, Seirus argues, what “Columbia complains of was expert testimony offered by an expert.” In addition, Seirus contends that “the HVLPO2 decision is inapposite here, because this Court found Columbia failed to object to the testimony on any basis at trial and thus waived any such argument.”
The Federal Circuit denied the petitions for rehearing en banc in the following two cases:
- LoggerHead Tools, LLC v. Sears Holdings Corp. (argument-based prosecution history disclaimer)
- Duke University v. Biomarin Pharmaceutical Inc. (obviousness and issues relating to the decision in Arthrex)