Here is an update on recent en banc activity at the Federal Circuit. In the only pending en banc case, a veterans case, a new brief was filed. As for requests for rehearing en banc, the court received a new petition raising a question relating to the nexus requirement for secondary considerations of non-obviousness in patent cases. The court also received an amicus brief supporting rehearing to address the court’s handling of petitions for writs of mandamus seeking transfer in patent cases. Finally, the court denied petitions for rehearing in two other patent cases. Here are the details.
En Banc Case
In the only pending en banc case, a veterans case entitled Taylor v. McDonough, Taylor filed his opening brief. In it Taylor argues that the government “failed to allow Mr. Taylor the benefits Congress appropriated him” and “barr[ed] Mr. Taylor’s constitutionally-protected access to the court system that could have set things right.” As a result, he argues that Taylor’s service-connected benefit claims should be given an effective date of September 7, 1971.
En Banc Petitions
In Campbell Soup Co. v. Gamon Plus, Inc., Gamon Plus asked the en banc court to review the following question:
- Whether “the panel decision is contrary to the following decision(s) of the Supreme Court of the United States or the precedent(s) of this court: Teva Pharms. Int’l GmbH v. Eli Lilly & Co., 8 F.4th 1349 (Fed. Cir. 2021); Fox Factory, Inc. v. SRAM, LLC, 944 F.3d 1366 (Fed. Cir. 2019); In re Huang, 100 F.3d 135 (Fed. Cir. 1996); Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008); Demaco Corp. v. F. Von Langsdorff Licensing Ltd., 851 F.2d 1387 (Fed. Cir. 1988); and Apple Inc. v. Samsung Elecs. Co., 809 F.3d 633 (Fed. Cir. 2015).”
As Gamon Plus explains later in its petition, its “petition relates to the standards for the presumption nexus and the factual determination of nexus of a claimed invention to commercial success.”
New Amicus Brief
The court received an amicus brief in In re Apple Inc. filed by US Patents, LLC and Roku Inc. in support of en banc rehearing. In the brief, US Patents and Roku argue that the Federal Circuit “has reached inconsistent conclusions in mandamus petitions arising from virtually indistinguishable facts” and should correct the district court’s “misunderstanding of the relevance of the convenience of willing party witnesses and of how to evaluate relative congestion of the two fora.”
- Brief of Unified Patents, LLC and Roku Inc. as Amici Curiae in Support of Apple Inc.’s Petition for Rehearing and Rehearing En Banc
The Federal Circuit denied petitions in the following cases:
- Oren Technologies, LLC v. Proppant Express Investments LLC (fair notice of invalidity assertion in an inter partes review)
- Intex Recreation Corp. v. Team Worldwide Corp. (deference to the Patent Trial and Appeal Board)