En Banc Activity / Petitions
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Here is an update on recent en banc activity at the Federal Circuit in patent cases. Highlights include three new petitions raising questions related to prosecution history estoppel and vitiation and the denial of three petitions raising questions related to the Appointments Clause, definiteness, written description, and enablement. Here are the details.

New Petitions

In Galderma Laboratories, L.P. v. Amneal Pharmaceuticals LLC, Amneal Pharmaceuticals LLC presented the following question:

  • “Do clear and unmistakable arguments by a patentee during prosecution create an estoppel, regardless of whether the Patent Office agreed with the patentee’s arguments?”

In EMED Technologies Corp. v. Repro-Med Systems, Inc., EMED Technologies Corporation designated the following two statements as the questions presented:

1. “[W]hile the United States Supreme Court instructs the Federal Circuit to have a ‘focus on individual elements and a special vigilance against allowing the concept of equivalence to eliminate completely any such [claim] elements,’ the application of vitiation of a claim element must be supported by the evidence of record. Otherwise, the principle of vitiation swallows the doctrine of equivalents, thus rendering it meaningless.”

2. “While ‘[a] holding that the doctrine of equivalents cannot be applied to an accused device because it “vitiates” a claim limitation is nothing more than a [legal] conclusion that the evidence is such that no reasonable jury could conclude that an element of an accused device is equivalent to an element called for in the claim, or that the theory of equivalence to support the conclusion of infringement otherwise lacks legal sufficiency[,]’ an explanation of how the claim limitation or element is vitiated must be made or the protection of the patent grant is converted into a hollow and useless thing.”

A pro se appellant filed a petition for en banc rehearing in Arunachalam v. Wells Fargo Bank, N.A.

Denials

The Federal Circuit denied petitions for en banc rehearing in the following cases: