En Banc Activity / Petitions

Here is an update on recent en banc activity at the Federal Circuit. In NOVA v. Secretary of Veterans Affairs, a veterans case in which the en banc court will consider the court’s jurisdiction to review interpretive rules the Department of Veterans Affairs promulgates in its Adjudication Procedures Manual, three new amicus briefs were filed. Other highlights include new petitions in two patent cases raising questions related to venue and claim preclusion; a new response to a petition in another patent case raising questions related to jurisdiction; an invitation to respond to a petition raising questions related to patent eligibility; and the denial of a petition raising questions related to obviousness. Here are the details.

En Banc Case

New Amicus Briefs

Three new amicus briefs were filed in NOVA v. Secretary of Veterans Affairs, all in support of the petitioner, NOVA. This case concerns Federal Circuit precedent holding that the court lacks jurisdiction to review interpretive rules that the Department of Veterans Affairs (VA) promulgates in its Adjudication Procedures Manual.

In the first amicus brief, Military-Veterans Advocacy Inc. argues that the court foreclosing review of VA rules “diverges from the plain meaning of the relevant statutes, and it does so in a way that disfavors veterans and fails to resolve the problem Congress set out to address.”

In the second amicus brief, National Veterans Legal Service Program contends that, “[i]f this erroneous precedent stands, veterans will be unable to obtain prompt Article III pre-enforcement review of unlawful manuals” and “will instead face a lengthy and backlogged process.”

In the third brief, the National Law School Veterans Clinic Consortium asserts that “[t]he effect of this Court’s [precedent] is to allow the Secretary to evade judicial review,” and that “[t]here is no other equivalent mechanism to section 502 review available to a veteran to secure relief in the circumstances underlying this appeal.”

Here are the briefs:


New Petitions

New petitions were filed in two cases.

In In re Apple Inc., Apple asked the en banc court to review the following two questions:

  1. “[W]hether a district court’s mere application of each [28 U.S.C.] § 1404(a) factor precludes mandamus even in the face of multiple clear legal errors in the analysis.”
  2. “[W]hether a petitioner is barred from obtaining mandamus relief from a denial of transfer under 28 U.S.C. § 1404(a) to the clearly most convenient forum because that petitioner has received lesser alternative relief in the form of transfer to a clearly less convenient forum.”

In In re PersonalWeb Technologies LLC, PersonalWeb presented the following two issues to the en banc court:

  1. Whether the court erred in ruling “that the Kessler doctrine precluded claims of infringement arising after this dismissal with prejudice—which involved no finding whatsoever of noninfringement.”
  2. Whether “[t]he Panel’s decision also failed to apply the established test used for both claim preclusion and the Kessler doctrine for determining if the subject matter accused in two cases is ‘essentially the same.'”

New Response

In Apple Inc. v. Universal Secure Registry LLC, Universal Secure Registry filed its response to Apple’s petition for en banc review. Apple previously asserted that the Federal Circuit has jurisdiction to review a decision by the Patent Trial and Appeal Board to terminate a Covered Business Method or other post-grant review proceeding twelve months after institution without deciding the patent merits.

In its response, Universal Secure Registry points out that Apple is “attempting to appeal the Board’s termination vacating institution.” It then argues that “[t]he plain language of the America Invents Act . . . prohibits appeals of all institution decisions” and that “[t]he law is clear that such decisions are not appealable.” Further, it contends that the dismissal in this case in particular was “consistent with the plain language of the applicable statute, the decision of six panels of [the Federal Circuit] that have examined the issue, and two Supreme Court decisions.”

New Invitations for Response

The Federal Circuit invited a response to a petition in the following case:


The Federal Circuit denied petitions in the following case: