Here is an update on recent en banc activity at the Federal Circuit. The en banc court heard oral argument in a veterans case last week. As for petitions for en banc consideration in patent cases, a new petition was filed in a case raising questions related to literal infringement and claim construction; the court invited a response to a petition raising a question related to sanctions; and the court denied two petitions, one in a pro se case and one raising a question related to non-obviousness. Here are the details.
En Banc Cases
On Thursday of last week, the en banc court heard a lengthy (over two hour!) oral argument in National Organization of Veterans Advocates, Inc. v. Secretary of Veterans Affairs. For a summary of highlights from the argument, check out our argument recap.
There has been no activity in Arellano v. Wilkie, the other veterans case pending before the en banc court.
En Banc Petitions
Here is an update on petitions for en banc consideration in patent cases.
A new petition was filed in one patent case.
In Godo Kaisha IP Bridge 1 v. TCL Communication Technology Holdings, Ltd., TCL Communication Technology Holdings asked the en banc court to review the following two questions:
- “Under 35 U.S.C. § 271 and Supreme Court precedent, may a patentee prove literal infringement, not by comparing the accused product to the asserted claim and showing that each limitation in the claim is present in the accused product, but instead by relying on the essentiality of its patent to an industry standard?”
- “If so, for a patentee to rely on an industry standard in proving infringement, must the court first construe the asserted claims and conclude as a matter of law that their reach covers each implementation of the standard, or may the jury undertake that analysis as a matter of fact at trial?”
New Invitation for Response
The Federal Circuit invited a response to a petition in one patent case:
- Khan v. Hemosphere Inc. (sanctions)
The Federal Circuit denied petitions in two patent cases: