Here is an update on recent en banc activity at the Federal Circuit. In the only pending en banc case, a veterans case, five new amicus brief were filed in support of the appellant. As for requests for rehearing en banc in patent cases, the court received four new petitions raising questions relating to patent eligibility and claim construction. The court also invited a response to a petition that raised questions concerning the court’s handling of petitions for writs of mandamus seeking transfer in patent cases. Finally, the court received a response to a petition raising a question related to the appropriate timing of a notice of an interlocutory appeal. Here are the details.
En Banc Case
In the only pending en banc case, a veterans case entitled Taylor v. McDonough, five new amicus briefs were filed in support of the appellant, Taylor. This case concerns whether a claim of entitlement to an earlier effective date under the doctrine of equitable estoppel would be contrary to statutory appropriations and thus be barred by the Appropriations Clause.
In the first amicus brief, the American Legion argues that “the Appropriations Clause does not bar equitable estoppel in this case” since “the Appropriations Clause is not an independent barrier to payment in situations where Congress has waived immunity through statute.” And, the American Legion contends, “Congress has waived sovereign immunity through the enactment of the Veterans’ Judicial Review Act.”
In the second amicus brief, Military-Veterans Advocacy Inc. argues principles of equitable estoppel “afford Mr. Taylor a 1971 effective date for his benefits” and “Mr. Taylor has an actionable claim under the standard described in Christopher v. Harbury, 536 U.S. 403 (2002).”
In the third amicus brief, the National Law School Veterans Clinic Consortium argues “only the Veterans Court can cure the injustice here because the Secretary’s equitable authority” provides no remedy and “Article I courts have the power to apply the doctrine of equitable estoppel against the government in cases over which they have jurisdiction.”
In the fourth amicus brief, National Veterans Legal Services Program argues “the constitutional right of judicial access extends to a right to adequately and meaningfully submit claims to the VA for benefits.”
In the fifth amicus brief, the American Civil Liberties Union argues “access to the courts is a fundamental constitutional right” and “threatening a person with punishment for accessing the courts, erecting insurmountable barriers, or covering up evidence all violate the right to access courts.”
Here are the briefs:
- Amicus Brief By The American Legion in Support of Claimant-Appellant and Reversal
- Brief of Military-Veterans Advocacy Inc. as Amicus Curiae in Support of Appellant
- En Banc Brief of Amicus Curiae National Law School Veterans Clinic Consortium Supporting Claimant-Appellant
- Amicus Brief of The National Veterans Legal Services Program and Swords to Plowshares Supporting Claimaint-Appellant
- Brief of Amici Curiae American Civil Liberties Union and American Civil Liberties Union of the District of Columbia in Support of Claimant-Appellant Bruce R. Taylor
En Banc Petitions
New Petitions
In Apple Inc. v. Universal Secure Registry LLC and Universal Secure Registry LLC v. Apple Inc., Universal Secure Registry asked the en banc court to review the following questions:
- “Whether step one of the Alice test for patentable subject matter requires a showing of ‘specificity,’ ‘unexpected results,’ or unconventional claim elements.”
- “Whether the two steps of the Alice test are distinct requirements that must both be separately met to invalidate a patent claim.”
In PersonalWeb Technologies LLC v. Google LLC, PersonalWeb Technologies asked the en banc court to review the following question:
- “Whether the judicially-created ‘abstract idea’ exclusion from patent eligibility under § 101 of the Patent Act should be analyzed using a technological improvement approach or using an element-by-element approach—an approach that considers whether individual patent limitations, standing alone, fall within one of the patent-ineligible categories?”
In In re PersonalWeb Technologies, LLC, PersonalWeb Technologies asked the en banc court to review the following questions:
- Whether “a claim term written in the alternative form ‘[genus] or [species]’ be construed to be limited only to the species, even though that denies the patentee the full scope of the claim, and even where the specification contains no express disavowal of scope?”
- Whether “this Court [may] look to Supreme Court precedent applying the canons of statutory state law preemption—in which the presumption is in favor of a narrow reading—to overrule this Court’s precedent on claim construction, in which the presumption is in favor of a broad reading?”
New Invitation to Respond
The Federal Circuit invited a response to the petition in In re Apple Inc., which raised questions concerning the court’s handling of petitions for writs of mandamus seeking transfer in patent cases.
New Response
In Mondis Technology Ltd. v. LG Electronics Inc., Mondis Technology filed a response to LG Electronic’s petition for rehearing en banc. In its petition, LG Electronics asked whether, “if an appellant follows [Federal Rule of Appellate Procedure 4(a)(4)’s] bright-line instruction by waiting to file its notice of an interlocutory appeal to this Court under 28 U.S.C. §1292(c)(2) until the district court ‘dispos[ed] of the last such remaining motion,’ does the Court nevertheless lack jurisdiction if the last such remaining motion does not ‘relate to’ the particular judgment being appealed?” In its response, Mondis Technology argues that “LG has failed to identify any conflict with another circuit decision, and the question at issue hardly concerns a matter of ‘exceptional importance.'”