En Banc Activity / Petitions

Here is an update on recent en banc activity at the Federal Circuit in patent cases. The court received three new petitions raising questions related to claim construction, conflict of interest, due process, inducement of infringement, and an evidentiary rule. The court invited a response to a petition raising questions related to the written description requirement. In the same case, the court received three new amicus briefs supporting rehearing. Here are the details.

En Banc Petitions

New Petitions

In Astrazeneca AB v. Mylan Pharmaceuticals Inc., Astrazeneca asked the en banc court to review the following question:

  • “Whether the established, agreed-upon ordinary meaning of a numerical term in a claim may be displaced, in the absence of lexicography or disclaimer, on the basis that it may encompass more than the most preferred disclosed embodiment.”

In Western Plastics, Inc. v. DuBose Strapping, Inc., DuBose Strapping asked the en banc court to review the following questions:

  1. “Should a panel judge recuse herself where a family member opined in favor of the Appellee on an issue before the panel?”
  2. “Do basic issues of fairness and due process entitle a patent defendant to articulation at either the trial court or appellate court as to (a) how the asserted patent satisfies the requirements of 35 U.S.C. § 103 and/or, (b) how the plaintiff satisfies the causality requirements prerequisite to a recovery of lost profits, when the defendant raises prima facie challenges to these issues?”

In Alpek Polyester, S.A. de C.V. v. Polymetrix AG, Alpeks Polyester asked the en banc court to review the following questions:

  1. “Did the panel err in failing to recognize that liability for induced infringement under 35 U.S.C. § 271(b) can be based on foreign activity, and that Polymetrix’s ownership of the newly installed plant equipment in Poland during the commissioning period makes Polymetrix the owner of the PET made by such equipment under Swedish law governing the contract, where Alpek/DAK presented unrebutted declaration evidence from a Swedish law expert, the infringing PET was imported into the U.S. during the commissioning period, and Polymetrix ratified such infringing conduct under the contract?”
  2. “Did the panel err in holding—without any supporting authority—that party and non-party corporate testimony should be treated differently for purposes of Fed. R. Evid. 602’s personal knowledge requirement, where the Eighth Circuit in General Mills Operations, LLC v. Five Star Custom Foods, Ltd., 703 F.3d 1104 (8th Cir. 2013) made no such distinction?”

Invitation to Respond

The Federal Circuit invited a response to the petition in Biogen International GmbH v. Mylan Pharmaceuticals Inc., which raised questions relating to the written description requirement.

New Amicus Briefs

The court also received three new amicus briefs in Biogen International GmbH v. Mylan Pharmaceuticals Inc., which, again, raised questions relating to the written description requirement. All three amicus briefs support rehearing. One of the briefs came from a trade association representing over 1,000 members. In it, they argue “the Federal Circuit is creating a heightened standard for written description under 35 U.S.C. § 112 that may cause unintended harm to multiple sectors . . . including emerging biotech companies, health biotechnology, agriculture and environment, and food and agriculture biotechnology. According to the friends of the court, “blaze marks are unnecessary to point the [person of skill in the art] to an expressly disclosed data point from among a small number of other data points.” Here is are links to the recently-filed amicus briefs: