Here is an update on recent en banc activity at the Federal Circuit in patent cases. The court received two new petitions raising questions related to the written description requirement and the standard of review for the grant or denial of a preliminary injunction. The court also invited a response to a petition raising a question related to the written description requirement. Here are the details.
En Banc Petitions
In Indivior UK Limited v. Dr. Reddy’s Laboratories S.A., Indivior UK Limited asked the en banc court to review the following question:
- “Is the written description requirement satisfied where (1) a patent’s priority application discloses a numeric range and numeric examples for an ingredient quantity, (2) the patent’s claims recite a numeric range for the ingredient that is narrower than the disclosed range and also encompasses the examples, and (3) the patent challenger has adduced no evidence rebutting the presumption of sufficient written description support under In re Wertheim?”
In Low Temp Industries, Inc. v. Duke Manufacturing Co., Low Temp Industries asked the en banc court to review the following questions:
- “Whether a district court’s grant of preliminary injunction can be properly reversed under an abuse of discretion standard because the claims appear ‘vulnerable’ to a validity challenge even though the district court made factual findings on other bases indicating the entire validity challenge ‘lacked substantial merit’ in light of the ultimate burdens at trial?”
- Whether “[t]he Panel’s findings regarding ‘adjacent’ are inconsistent with the intrinsic evidence and factual findings regarding extrinsic evidence, which should have been shown deference?”
- Whether “[t]hese bases, when viewed through the proper lens of deference, independently support the injunction.”
- Whether “[g]iven the district court’s findings on independent grounds, the Panel’s decision to reverse, rather than vacate and remand, deprived the district court of its sound discretion in determining likelihood of success.”
New Invitation for Response
The Federal Circuit invited a response to the petition in Indivior UK Limited v. Dr. Reddy’s Laboratories S.A., which raised questions relating to the written description requirement.