En Banc Activity

Here is an update on recent en banc activity at the Federal Circuit. In one of the two pending en banc cases addressing veterans law, the court requested the parties file supplemental briefs to address concerns with Article III standing. Other updates include new petitions raising questions related to patent marking, expert testimony, willful infringement, and sanctions; a new invitation to respond to a petition raising a question related to remedies; a new amicus brief in a case raising a question related to double-patenting; and the denial of two petitions raising questions related to patent eligibility and claim construction. Here are the details.

En Banc Cases

In NOVA v. Secretary of Veterans Affairs, the court requested the parties file supplemental briefs addressing the following questions related to NOVA’s Article III standing:

  1. “Are the allegations of the Petition sufficient to establish standing, even without any evidence from NOVA, given that the Secretary does not challenge standing, or must NOVA submit evidence to establish Article III standing, see Phigenix, Inc. v. Immunogen, Inc., 845 F.3d 1168, 1171–73 (Fed. Cir. 2017); Shrimpers & Fishermen of RGV v. Texas Commission on Environmental Quality, 968 F.3d 419, 423–24 (5th Cir. 2020) (citing cases from six other circuits)?”
  2. “Is there evidence that, at the time of the Petition, NOVA had members with standing to challenge the provisions at issue?”
  3. “Does NOVA have standing on any basis apart from having had members who would have had standing to challenge the provisions at issue?”

There has not been any recent activity in Arellano v. Wilkie, the other en banc case currently pending before the court.

En Banc Petitions

New Petitions

New petitions were filed in three patent cases.

In Packet Intelligence LLC v. NetScout Systems, Inc., both parties filed petitions for rehearing en banc.

Packet Intelligence asked the en banc court to review the following two questions:

  1. “Whether an accused infringer’s ‘initial burden of production’ under Arctic Cat requires production of evidence that an allegedly unmarked article practices the invention, or is satisfied merely by asserting that an article is not properly marked.”
  2. “Whether 35 U.S.C. § 287(a) requires marking not only by a patentee and its agents, but also by mere licensees.”

NetScout Systems, Inc. asked the en banc court to review the following two questions:

  1. “Must a party object to the admissibility of expert testimony that was immaterial in light of the court’s claim construction order to preserve a challenge to the legal sufficiency of that testimony?”
  2. “Must a company’s highest-level executives personally study the asserted patents to avoid a finding of willful infringement?”

In Khan v. Hemosphere Inc., Khan asked the en banc court to review the following question:

  • “Federal Rule of Civil Procedure 11(c)(2) provides that a motion for sanctions ‘must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets.’ May a motion for Rule 11 sanctions be granted when the moving party fails to serve the motion on the nonmoving party prior to filing?”

In Golden v. Apple Inc., Golden, a pro se litigant, filed a petition for en banc rehearing.

New Invitation for Response

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

New Amicus Brief

A new amicus brief was filed in Immunex Corp. v. Sandoz in support of rehearing en banc. In it, the Association for Accessible Medicines and America’s Health Insurance Plans argue that the decision by the panel “has seriously undermined . . . the [obviousness-type double patenting (‘ODP’)] doctrine,” increasing the likelihood of drug manufacturers to “improperly extend exclusivities for biologic drugs” and preventing biosimilar manufacturers like Sandoz from “provid[ing] lower-cost alternatives.”


The Federal Circuit denied petitions in the following two cases: