En Banc Activity / Petitions

Here is an update on recent en banc activity at the Federal Circuit in patent cases. The court received a new petition raising a question related to indefiniteness. Additionally, the court received a response to a petition concerning the treatment of expert opinions. Lastly, the court denied three petitions raising questions related to the termination of inter partes review proceedings, jurisdiction, and enablement. Here are the details.

En Banc Petitions

New Petition

In SPEX Technologies, Inc. v. Western Digital Corp., Western Digital asked to en banc court to review the following question:

  • Whether “the panel decision is contrary to at least the following precedents of this Court: Williamson v. Citrix Online, LLC, 792 F.3d 1339 (Fed. Cir. 2015); Default Proof Credit Card Sys., Inc. v. Home Depot U.S.A., Inc., 412 F.3d 1291 (Fed. Cir. 2005); and AllVoice Computing PLC v. Nuance Commc’ns, Inc., 504 F.3d 1236 (Fed. Cir. 2007).”

New Response

In Wi-LAN Inc. v. Sharp Electronics Co., Appellees Sharp Electronics and Vizio filed their response to Wi-LAN’s petition for en banc review. In its petition, Wi-LAN argued that the district court improperly barred expert testimony based on unreliable evidence, “ignor[ing] . . . conflicting testimony” and “abdicat[ing] its responsibility to consider whether experts in the field would rely on the same evidence.” In response, Appellees argue that “Wi-LAN’s petition relies on a misleading narrative and misreading superseded Third Circuit cases.” Simply put, Appellees content, “Wi-LAN did not carry its burden of showing an expert would reasonably rely on [untrustworthy] evidence, and the district court did not abuse its discretion in excluding [such evidence].” Thus, say Appellees, “Wi-LAN could not prove infringement.”

New Denials

The Federal Circuit denied petitions in the following two cases: