En Banc Activity / Petitions

Here is an update on recent en banc activity at the Federal Circuit. The en banc court issued a long-awaited opinion last week in a veterans case addressing the applicability of equitable tolling to a particular statutory provision. The court received a response to a petition in a patent case, which raised a question related to competitor standing. Finally, the court denied rehearing in a case raising questions related to patent law’s enablement requirement. Here are the details.

En Banc Cases

In an en banc veterans case, Arellano v. McDonough, the court issued a short per curiam opinion along with two separate opinions each representing the views of six members of the court. In the per curiam opinion, the court announced that it would “leave in place [its] prior decision, Andrews v. Principi, . . . which held that principles of equitable tolling are not applicable to the time period in 38 U.S.C. § 5110(b)(1).” Additionally, court released two concurrences advocating for and against the recognition of equitable tolling with respect to the effective date of disability claims under § 5110. For an in depth summary of the court’s disposition of this case, see our opinion summary posted last week.

En Banc Petitions

New Response

In Apple Inc. v. Qualcomm Inc., Qualcomm filed its response to Apple’s petition for en banc review. In its petition, Apple argued that the panel had, “contrary to the . . . decision of the Supreme Court of the United States [in] . . . MedImmune Inc. v. Genetech, Inc., 549 U.S. 118 (2007); Cardinal Chem. Co. v. Morton Int’l Inc., 508 U.S. 83 (1993); and Altvater v. Freeman, 319 U.S. 359 (1943),” erred in rejecting its argument for competitor standing. In response, Qualcomm argues that “Apple attempt[ed] to characterize the [panel’s] decision as a misapplication of precedent rather than a straightforward determination that Apple failed to provide adequate standing evidence.”


On Monday of this week, the court denied en banc rehearing in Amgen Inc. v. Sanofi, Aventisub LLC, a patent case raising questions related to enablement. Notably, while the panel also denied rehearing, it issued a separate opinion to explain why it had not created a new test for enablement.