En Banc Activity

Here is an update on recent en banc activity at the Federal Circuit in patent cases. The court received and invited a response to a new petition raising questions related to enablement. The court also denied three petitions raising questions related definiteness, intervening rights, willfulness, unclean hands, claim construction, and the doctrine of equivalents. Here are the details.

New Petition and Invitation for Response

A new petition was filed in one case.

In Amgen Inc. v. Sanofi, Aventisub LLC, Amgen asked the en banc court to review the following two questions:

  1. “Whether the panel’s new enablement test for genus claims with functional limitations, which has no basis in § 112’s text, conflicts with Supreme Court decisions, including Minerals Separation, Ltd. v. Hyde, 242 U.S. 261 (1916); Wood v. Underhill, 46 U.S. (5 How.) 1 (1846); and Mowry v. Whitney, 81 U.S. (14 Wall.) 620 (1872), and decisions of this Court and its predecessor, including AK Steel Corp. v. Sollac & Ugine, 344 F.3d 1234 (Fed. Cir. 2003), and In re Angstadt, 537 F.2d 498 (C.C.P.A. 1976).”
  2. “Whether enablement is a question of fact, as the Supreme Court has held, see Battin v. Taggert, 58 U.S. (17 How.) 74 (1854); Wood v. Underhill, 46 U.S. (5 How.) 1 (1846), or a question of law, as this Court holds, Op.6.”

The court also invited a response to the petition.


The Federal Circuit denied petitions in the following three cases: