En Banc Activity

Here is an update on recent en banc activity at the Federal Circuit. New petitions were filed in two patent cases raising questions related to claim construction and the doctrine of equivalents. The court also denied seven petitions in patent cases raising questions related to Rule 36 judgments, injunctive relief, claim construction, awards of attorneys’ fees, eligible subject matter, deference to the Patent Trial and Appeal Board, standing, inter partes review, and enablement. Here are the details.

En Banc Petitions

New Petitions

In Olaf Sööt Design, LLC v. Daktronics, Inc., Olaf Sööt Design (“OSD”) filed a petition asked the en banc court to review the following questions:

  1. “Whether waiver prevents a challenge to claim construction on appeal sua sponte where a party’s waiver is based on the fact that the original claim construction was (i) sponsored by the party during Markman, (ii) accepted by the district court, and applied by the jury in reaching its verdict; and (iii) not challenged on appeal by either party. If not, what conditions must exist to overcome such waiver on claim construction.”
  2. “Whether a ‘plain and ordinary meaning’ claim construction is ever appropriate for jury instructions on infringement by the district court; and if so, is it appropriate for simple, non-technical terms such as the element h and ‘hollow drum’ at issue in this case.”
  3. “Whether a jury verdict of infringement under the doctrine of equivalents can be reversed on vitiation grounds as a legal exception to equivalents that negates any requirement for deferential consideration of the substantial evidence supporting the verdict. If so, what are the circumstances that create a legal exception to equivalents by vitiation.”

In KEYnetik, Inc. v. Samsung Electronics Co., KEYnetik asked the en banc court to review the following question:

  • “[W]hether the introduction of extra-record evidence and new arguments by the Panel violated KEYnetik’s due process rights and this Court’s and the Supreme Court’s precedents concerning the scope of appellate review[.]”


The Federal Circuit denied petitions in the following seven patent cases: