Here is an update on recent en banc activity at the Federal Circuit. Telephonic oral argument is scheduled next week in an en banc veterans case, Arellano v. Wilkie. As for patent cases, petitions were filed in four cases raising questions related to an award of attorney’s fees, eligible subject matter, deference to findings of the Patent Trial and Appeal Board, and standing. In addition, a new response was filed arguing against the grant of a petition raising questions related to injunctive relief. Here are the details.
En Banc Case
The court will hold a telephonic oral argument in Arellano v. Wilkie on Thursday, February 4. In this case, a veteran is challenging Federal Circuit precedent governing the availability of equitable tolling in the context of disability benefits based on applications filed within one year from the date of the veteran’s discharge or release. See our argument preview for more details.
En Banc Petitions
New Petitions
New petitions were filed in four patent cases.
In Innovation Sciences, LLC v. Amazon.com, Inc., Innovation Sciences asked the en banc court to review the following three questions:
- Is “[a] stipulation of non-infringement in light of an adverse claim construction . . . evidence that a patent owner never had a viable theory of infringement?”
- Should fees be awarded “based on the district court’s belief . . . that the claims of the ’844 patent might be invalid, especially where no such finding was ever made and the district court’s belief is based, in part, on a claim construction rejected by this Court”?
- Did the Markman construction “notify Innovation that the ’140 patent was legally insufficient either as patent ineligible subject matter or because it lacked a written description”?
In NetSoc, LLC v. Match Group, LLC, NetSoc asked the en banc court to review the following three questions:
- “Is the addition of a computer implemented social network, with a novel and unconventional rating system, to a method of organizing human activity per se unpatentable as directed to an abstract idea?”
- “Is a network computer implemented social network an application of an abstract concept, namely the organizing and rating of human activity, to a new and useful end, therefore remaining eligible for patent protection?”
- “In 2003, did the creation of a network computer implemented social network with a novel and unconventional rating system transform it into an improved social network that is something concrete and tangible?”
In GREE, Inc. v. Supercell Oy, GREE asked the en banc court to review the following two questions:
- “May a Panel of this Court disregard the Patent Trial and Appeal Board’s finding that the Petition did not present evidence or arguments that features recited by claims 2-4 and 9 were well-known, routine, or conventional, and, instead make its own finding of fact that the features were well-known, routine, or conventional, without applying the correct standard of review or burden of proof, without citing to evidentiary support or analysis in the record, and without deference to the PTAB’s findings and analysis of the evidentiary record?”
- “Where an earlier Panel of this Court has previously found that a nearly identical idea to which claims 2-4 and 9 are directed is non-abstract, may a Panel of this Court nevertheless find the claims here directed to an abstract idea without addressing that earlier Panel’s decision, thereby increasing the unpredictability and uncertainty of the Alice test and stifling innovation?”
Finally, in General Electric Co. v. Raytheon Technologies Corp., Raytheon Technologies asked the en banc court to review the following two questions:
- “[W]hether Article III’s injury-in-fact requirement, which the United States Supreme Court has held is an ‘irreducible minimum,’ can be relaxed for IPR petitioner appellants, contrary to this Court’s and Supreme Court precedent.”
- “[W]hether the PTAB’s factual findings regarding the scope and content of the prior art are entitled to deference on appeal.”
New Response
In SiOnyx LLC v. Hamamatsu Photonics K.K., SiOnyx filed its response to Hamamatsu Photonics K.K.’s (“HPK”) petition for en banc review. In the petition, HPK argues that the decision by the panel to affirm the grant of an injunction contradicts the court’s precedent that “an injunction cannot vaguely prohibit infringing or practicing a patent, but rather must be limited to products that have been adjudicated and to products no more than colorably different therefrom,” and that the injunction directed against HPK “lacks the specificity and notice required by Rule 65(d)” of the Federal Rules of Civil Procedure.
In response, SiOnyx argues that the decision aligns with the court’s determination that “the proper scope of an injunction is dependent on the circumstances of the case,” and that the injunction is not vague because “the record . . . is extensive, providing Hamamatsu with ample information from which it understands what activities are enjoined.”