Here is an update on recent en banc activity at the Federal Circuit. In one of the two pending en banc veterans cases, the Court invited the National Organization of Veterans Advocates to file an amended petition. In the other case, two amicus briefs were filed. With respect to petitions for en banc rehearing in patent cases, highlights include a new invitation to respond to a petition raising questions related to literal infringement and claim construction; a new amicus brief filed in a case raising questions related to prosecution history estoppel, vitiation, and reasonable royalties; and the denial of two petitions in cases raising questions related to patent marking, expert testimony, willful infringement, and inventorship. Here are the details.
En Banc Cases
In National Organization of Veterans Advocates v. Secretary of Veterans Affairs, following the recent oral argument, the court invited NOVA to move for leave to file an amended petition. In response, NOVA filed an unopposed motion. According to NOVA, the amended petition it seeks to file first “adds three individuals . . . as petitioners in order to eliminate any concern about whether NOVA has Article III standing in this case.” The amended petition also “adds a challenge to Agency Interpretation of Prosthetic Replacement of a Joint, 80 Fed. Reg. 42,040 (July 16, 2015) (2015 Knee Replacement Guidance).” According to NOVA, “[a]llowing these amendments will confirm that this Court can reach the merits of the interpretations challenged in this case and ensure that the Court can decide the extraordinarily important threshold issues that it granted en banc review to decide.” As a reminder, those questions relate to whether the 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, and whether the Federal Circuit’s rules impermissibly supersede the six-year limitations period set forth in 28 U.S.C. § 2401(a), which applies to actions brought under 38 U.S.C. § 502.”
Two amicus briefs were filed in Arellano v. Wilkie in support of the appellant, Arellano. In this case the court is considering whether equitable tolling is available to veterans with respect to the statutory provision stipulating that “[t]he effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release.” 38 U.S.C. § 5110(b)(1). One amicus brief was filed by the National Veterans Legal Services Program and the National Organizations of Veterans’ Advocates, and the other amicus brief was filed by the National Law School Veterans Clinic Consortium.
En Banc Petitions
New Invitation for Response
The Federal Circuit invited a response to a petition in the following case raising questions related to literal infringement and claim construction in the context of allegations of infringement tied to compliance with an industry standard:
New Amicus Brief
In Bio-Rad Laboratories, Inc. v. 10x Genomics Inc., 10x presents several questions related to prosecution history estoppel, vitation, and apportionment of reasonable royalty damages. 10x received support for its position on the issue of apportionment of reasonable royalty damages in the form of an amicus brief:
- Brief of Amici Curiae Electronic Frontier Foundation and R Street Institute in Support of Petition for Rehearing En Banc
The Federal Circuit denied petitions in the following two cases:
- Packet Intelligence LLC v. NetScout Systems, Inc. (patent marking, expert testimony, and willful infringement)
- Dana-Farber Cancer Institute, Inc. v. Ono Pharmaceutical Co. (inventorship)