En Banc Activity

Here is an update on recent en banc activity at the Federal Circuit. In one of the two cases in which the court has granted en banc hearings, the National Organization of Veterans Advocates filed a reply brief. In cases with pending petitions for en banc consideration, highlights include responses to two petitions raising issues related to patent eligibility and inventorship, and a voluntary withdrawal of a petition related to venue.

En Banc Cases

In National Organization of Veterans Advocates, Inc. v. Secretary of Veterans Affairs, NOVA filed its reply brief on the merits. As a reminder, in this case, the Federal Circuit granted a petition for initial hearing en banc to consider two questions related to veterans law:

  1. “Whether this Court has jurisdiction under 38 U.S.C. § 502 to review a generally applicable interpretive rule that the Department of Veterans Affairs (VA) promulgates through its Adjudication Procedures Manual.”
  2. “Whether Federal Circuit Rule 47.12(a) impermissibly supersedes the six-year limitations period in 28 U.S.C. § 2401(a), which applies to actions brought under 38 U.S.C. § 502.”

In the reply brief, NOVA makes three arguments. First, it argues the “VA largely ignores (or tries to re-write) the statutory text bearing on this Court’s jurisdiction under 38 U.S.C. § 502.” Second, it contends that, while the “VA argues that the challenged Manual provisions are not ‘final agency action’ under the Administrative Procedure Act (APA), . . . . Section 704 [of Title 5] itself makes clear that its finality requirement does not apply here.” Third, NOVA rejects “VA’s defense of the 60-day deadline for filing Section 502 petitions,” maintaining that “the court-created 60-day deadline cannot override the longer period set by Congress.”

This case is set for oral argument on October 8, 2020. Be on the lookout for our argument preview.

En Banc Petitions

New Responses

In Ericsson Inc. v. TCL Communication Technology Holdings Ltd., TCL filed its response to Ericsson’s petition for en banc review. Ericsson claims the panel majority announced a new rule that “the [patent-eligible subject matter] analysis cannot be ‘aided by a consideration of the specification.’” According to Ericsson, this approach conflicts with the court’s precedent.

In its response, TCL maintains that the majority did not announce a new rule; the court only, according to TCL, declined to “violate [the] Court’s bedrock claim construction precedent by importing an unclaimed limitation . . . from the specification into the claims.” TCL characterizes the case as a “routine claim-construction finding.”

In Dana-Farber Cancer Institute, Inc. v. Ono Pharmaceutical Co., Dana-Farber filed its response to Ono Pharmaceutical’s petition for en banc review. Ono Pharmaceutical argues the rules adopted by the panel “blur[red] the line between collaboration and co-inventorship in a way that ma[de] it difficult for parties to collaborate for a limited purpose without opening the door to claims of joint inventorship directed to their separate work.”

In its response, Dana-Farber disagrees that the rules used by the court create confusion. It claims that Ono Pharmaceutical is “attempt[ing] to recast [the district court’s factual determinations] as issues of law,” and it states that if the court adopts Ono Pharmaceutical’s proposed standard, the court would “adopt an ‘unnecessarily heightened inventorship standard.’”


The Federal Circuit granted a request to withdraw the petition in the following case: