Here is an update on recent en banc activity at the Federal Circuit in patent cases. The court received two new petitions, one raising a question related to comparable licenses and royalty calculations and another raising a question related to the written description requirement. The court received three more amicus briefs in support of rehearing en banc in a case that raises questions concerning the inducement doctrine’s interaction with the Hatch-Waxman amendments. Finally, the court denied three petitions for rehearing en banc, one raising a question related to writs of mandamus and two raising the same questions related to patent eligibility. Here are the details.
En Banc Petitions
New Petitions
In Omega Patents, LLC v. CalAmp Corp., Omega Patents asked the en banc court to review the following question:
- “[W]hat evidence is required to establish that a multi-patent license is sufficiently comparable for purposes of built-in apportionment of royalties on a single patent?”
In Juno Therapeutics, Inc. v. Kite Pharma, Inc., Juno Therapeutics asked the en banc court to review the following question:
- “Whether the Court’s ‘written description’ requirement is contrary to 35 U.S.C. § 112 ¶ 1 (now § 112(a)).”
New Amicus Briefs
The court received three new amicus briefs in GlaxoSmithKline LLC v. Teva Pharmaceuticals USA, Inc., which raised questions concerning the inducement doctrine’s interaction with the Hatch-Waxman amendments. All three amicus briefs support rehearing. Notably one of the briefs came from one of the main authors of the Hatch-Waxman amendments, former Congressman Henry Waxman himself. He argues that “the Majority’s decision in this case is flatly inconsistent with the language of the Act and congressional intent” and maintains that the court must “respect the role of the Legislature, and take care not to undo what it has done.” Here is a list with links to the amicus briefs:
- Corrected Brief for Mylan Pharmaceuticals Inc. as Amicus Curiae in Support of Defendant-Cross-Appellant’s Petition for Rehearing En Banc
- Brief of Amicus Curiae Former Congressman Henry A. Waxman in Support of Petition for Rehearing En Banc [Corrected]
- [Corrected] Brief of 14 Professors of Law as Amici Curiae in Support of the Petition for Rehearing En Banc
New Denials
The Federal Circuit denied the petitions for rehearing en banc in three cases:
- In re Apple Inc. (writ of mandamus)
- Universal Secure Registry LLC v. Apple Inc. (patent eligibility)
- Apple Inc. v. Universal Secure Registry LLC (patent eligibility)