En Banc Activity / Petitions

Here is an update on recent en banc activity at the Federal Circuit. Supplemental briefs were filed in both en banc veterans cases pending before the court, and an amicus brief was filed in one of the cases. As for petitions for en banc rehearing in patent cases, highlights include new petitions filed in two cases raising questions related to issue and claim preclusion, jurisdiction in inter partes review proceedings, and alleged due process and takings violations in an inter partes review, as well as a response to a petition that raised a question related to patent law’s non-obviousness requirement. Here are the details.

En Banc Cases

In NOVA v. Secretary of Veterans Affairs, NOVA filed its supplemental brief addressing the issue of Article III standing. The brief argues that “NOVA has standing to bring this case.” In particular, NOVA contends that “[b]ecause NOVA’s standing is self-evident under [the court’s caselaw] and unchallenged by VA, additional evidence of NOVA’s standing is unnecessary.” NOVA goes on, however, to “provid[e] the Court with evidence confirming that NOVA has Article III associational standing in this case.”

In Arellano v. Wilkie, Arellano filed its supplemental brief addressing the following questions posed by the court:

A. Does the rebuttable presumption of the availability of equitable tolling articulated in Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990), apply to 38 U.S.C. § 5110(b)(1), and if so, is it necessary for the court to overrule Andrews v. Principi, 351 F.3d 1134 (Fed. Cir. 2003)?

B. Assuming this Court holds that Irwin’s rebuttable presumption applies to § 5110(b)(1), has that presumption been rebutted?

C. Assuming this Court holds that Irwin’s rebuttable presumption applies to § 5110(b)(1), would such a holding extend to any additional provisions of § 5110, including but not limited to § 5110(a)(1)?

D. To what extent have courts ruled on the availability of equitable tolling under statutes in other benefits programs that include timing provisions similar to § 5110?

Arellano takes the position that “equitable tolling is available for § 5110(b)(1),” and that “[t]he Court should . . . take this en banc opportunity to overturn or clarify the Andrews decision to make clear that Andrews does not categorically preclude equitable tolling in all cases involving § 5110.”

In addition, Paul Wright, pro se, filed an amicus brief in support of Arellano.

En Banc Petitions

New Petitions

New petitions were filed in two patent cases.

In Sowinski v. California Air Resources Board, Sowinski asked the en banc court to review the following question:

  • “Whether, in direct conflict with the Supreme Court’s unmistakable guidance, this Court erred in crafting a patent-specific preclusion doctrine that bars new issues and new claims that would survive the ‘uniform’ rules of preclusion applied by all other circuits in every non-patent context.”

In Verify Smart Corp. v. Askeladden, LLC, Verify Smart Corp. asked the en banc court to review the following questions:

  1. “[W]hether the Director of the USPTO can accept a petition for Inter Partes Review (‘IPR’) from a party, where acceptance of that petition requires determination of an issue outside the scope of the jurisdiction of the agency’s authority.”
  2. “[W]hether the Patent Trial and Appeal Board’s (‘PTAB’) failure to consider, in determining the real parties in interest (‘RPI’), whether members of a joint venture that included an admitted RPI of the Petitioner were a combination of competitors acting in restraint of trade in violation of the Sherman Act and should have therefore each been considered a RPI, was an unconstitutional deprivation of due rights process or resulted in an impermissible taking under the [Fifth] [A]mendment.”

New Response

In LiquidPower Specialty Products Inc. v. Baker Hughes, a GE Company, Baker Hughes filed its response to LiquidPower’s petition for en banc review. LiquidPower argues that the court erred in its remand order in this case because the court effectively imposed a “knockdown” or rebuttal approach by having the PTAB weigh objective evidence of non-obviousness against prior findings, thus “devalu[ing] objective evidence” of non-obviousness in the required analysis. In response, Baker Hughes argues that the court is not imposing a knockdown approach but “simply direct[ing] the Board on remand to consider and weigh the evidence, including the objective evidence [of non-obviousness], before reaching a conclusion of law on obviousness.”