Here is an update on recent en banc activity at the Federal Circuit. Three new petitions were filed, one in a patent case raising a question related to obviousness; another in a patent case raising a question related to anticipation; and another in a pro se case. As for previously-filed petitions, this week’s highlight is a response to a petition in a patent case raising questions related to claim construction and infringement in the context of compliance with an industry standard. Here are the details.
New Petitions and New Invitation for Response
New petitions were filed in three cases.
In Twitter, Inc. v. Vidstream LLC, Twitter asked the en banc court to review the following question:
- If “a skilled artisan would have recognized that a patent’s claimed functionality could have been performed in either of two ways that were shown in the prior art, [are] both options . . . obvious as a matter of law[?]”
In Biogen MA Inc. v. EMD Serono, Inc., Biogen asked the en banc court to review the following question:
- “Whether an anticipation analysis comparing a prior art product to a claimed product-by-process requires considering all of the physical, structural differences between the prior art product and the product that results from the claimed process.”
The court has already invited a response to Biogen’s petition.
Lastly, a new petition was filed in In re Arunachalam, a pro se case.
In Godo Kaisha IP Bridge 1 v. TCL Communication Technology Holdings Ltd., IP Bridge filed its response to TCL’s petition for en banc review. In its petition, TCL presented questions related to the correct way to determine patent infringement with respect to compliance with an industry standard. In response, IP Bridge asserts, first, that “the district court did construe the claims, after considering briefing and argument from the parties in a standard Markman process.” IP Bridge asserts, second, that “TCL never suggested below, as it does now, that the court should have also determined the essentiality of the claims during that claim construction process” and so “[i]ts contrary position now is not only misguided, but waived.” Moreover, IP Bridge argues that patent infringement may be shown by determining (1) whether patent claims are essential to mandatory aspects of a standard and (2) whether accused products practice that standard.