Here is an update on recent en banc activity at the Federal Circuit. As for granted petitions, a new brief was filed in one of the two pending veterans cases. As for pending petitions, highlights include two new petitions, one in a patent case raising questions related to claim construction and one in a pro se case; and the denial of four petitions in patent cases raising questions related to obviousness, prosecution history estoppel, vitiation, reasonable royalties, and sanctions. Here are the details.
En Banc Case
Secretary Wilkie filed his response brief in Arellano v. Wilkie. In it, the Secretary argues that VA’s “discharge rule,” which “allows a veteran to collect disability compensation for a period of up to a year prior to the VA’s receipt of the underlying claim, so long as the VA receives the claim within one year of the veteran’s separation from service, . . . does not function as a statute of limitations.” As a result, he argues, the presumption in favor of equitable tolling for federal statutes of limitations should not apply.
En Banc Petitions
In Hoist Fitness Systems, Inc. v. TuffStuff Fitness International, Inc., Hoist Fitness Systems asked the en banc court to review the following two questions:
- “When construing claim terms, are courts permitted to refer to the intrinsic record to narrow claim scope only when a patentee either makes a clear and unambiguous disavowal or acts as its own lexicographer (the ‘strict’ approach); or are courts permitted to narrow claim scope by considering specification content more generally (the ‘holistic approach’)?”
- “If both, when is each to be used?”
In Arunachalam v. Citigroup, Inc., Arunachalam (a pro se litigant) filed a petition.
The Federal Circuit denied petitions in the following four cases:
- Amarin Pharma, Inc. v. Hikma Pharmaceuticals USA Inc. (obviousness)
- Bio-Rad Laboratories, Inc. v. 10x Genomics Inc. (prosecution history estoppel, vitiation, and reasonable royalties)
- Khan v. Hemosphere, Inc. (sanctions)
- Tormasi v.Western Digital Corp. (pro se)