En Banc Activity

Here is an update on recent en banc activity at the Federal Circuit. Highlights include a new petition filed in a patent case raising questions related to intervention in inter partes review proceedings; a new response to a petition raising questions related to anticipation of patent claims; the denial of a petition raising questions related to claim preclusion; and the denial of a petition in a pro se case. Here are the details.

En Banc Cases

There was no activity this week in either of the two en banc veterans cases currently pending before the court.

En Banc Petitions

New Petition

A new petition was filed in one case.

In Qualcomm Incorporated v. Intel Corp., Apple asked the en banc court to review the following two questions:

  1. “Must a real party in interest or privy of a petitioner in an inter partes review participate in the IPR as a precondition to intervening in an appeal from an IPR proceeding?”
  2. “When a party promptly moves to intervene as soon as it learns that its interests might no longer be protected by the existing parties and the record demonstrates that the existing parties will not be prejudiced by the timing of the motion to intervene, should intervention be denied solely because the request is filed after the 30-day deadline set forth in Federal Rule of Appellate Procedure 15(d)? (Nos. 20-1587, -1588, -1654; 20-1664; and 20-1828, -1867 only.)”

New Response

In Biogen MA Inc. v. EMD Serono Inc., Serono filed its response to Biogen’s petition for en banc review. In the petition, Biogen argues that the panel did not properly apply the court’s precedent governing anticipation, inappropriately disregarded the lower court’s finding that no reasonable jury could have found anticipation, and “misapplied Third Circuit precedent governing review of a district court decision conditionally granting a new trial.” In response, Serono argues that the panel properly applied precedent, the jury properly decided anticipation, and that a new trial would be contrary to Third Circuit law.


The Federal Circuit denied the petitions in the following two cases: