Here is an update on recent en banc activity at the Federal Circuit in patent cases. The court received a new petition raising questions related to writs of mandamus. The court invited a response to a petition that raised questions concerning the inducement doctrine’s interaction with the Hatch-Waxman amendments, and the court received two amicus briefs in support of this petition. Finally, the court denied a petition for rehearing en banc in a case that raised a question relating to the nexus requirement for secondary considerations of non-obviousness. Here are the details.
En Banc Petitions
New Petition
In In re Google LLC, Google asked the en banc court to review the following questions:
- “What level of deference should this Court afford on mandamus review of discretionary transfer decisions?”
- Whether “this Court [can] find a clear abuse of discretion, amounting to a usurpation of judicial power, based on (1) arguments and law never presented to the district court; (2) creating new law instead of following applicable regional circuit law; (3) substituting its weighing of discretionary factors for the district court’s; or (4) impinging on the district court’s discretion to control its docket?”
New Invitation to Respond
The Federal Circuit invited a response to the petition in GlaxoSmithKline LLC v. Teva Pharmaceuticals USA, Inc. , which raised questions concerning the inducement doctrine’s interaction with Hatch-Waxman amendments.
New Amicus Briefs
The court received two new Amicus Briefs in GlaxoSmithKline LLC v. Teva Pharmaceuticals USA, Inc. , which raised questions concerning the inducement doctrine’s interaction with Hatch-Waxman Amendments. Both amicus briefs supported rehearing. Notably, one of the amicus briefs was filed by the primary lobby for makers of generic drugs. They argued in their brief that “inducement requires proof of intentional infringement, yet the panel decision holds Teva liable for inducement based on label language the law required Teva to include” and that “this is not the law of inducement nor is it the law of Hatch-Waxman.” Here is a list with links to the amicus briefs:
- Brief for the Association for Accessible Medicines as Amicus Curiae in Support of Rehearing En Banc
- Brief of Amicus Curiae Apotex Inc. in Support of Defendant – Cross-Appellant’s Petition for Rehearing En Banc
New Denial
The Federal Circuit denied the petition for rehearing en banc in Campbell Soup Co. v. Gamon Plus, Inc., which raised a question relating to the nexus requirement for secondary considerations of non-obviousness.