En Banc Activity / Petitions

Here is an update on recent en banc activity at the Federal Circuit. Last week the court granted en banc reharing in a veteran’s case, and tomorrow the en banc court will hear oral argument in another veteran’s case. As for patent cases, the court received two new responses to petitions raising questions related to the Appointments Clause and the written description requirement, and the court invited a response to a petition raising questions related to conflicts of interest and due process. Finally, in another patent case the court received a new amicus brief supporting a petition raising a question related to claim construction. Here are the details.

En Banc Cases

Grant of Rehearing

Last week, the court granted rehearing in a veteran’s case, Rudisill v. McDonough. The court requested additional briefing related to the following questions:

  1. “For a veteran who qualifies for the Montgomery GI Bill and the Post-9/11 GI Bill under a separate period of qualifying service, what is the veteran’s statutory entitlement to education benefits?”
  2. “What is the relation between the 48-month entitlement in 38 U.S.C. § 3695(a), and the 36-month entitlement in § 3327(d)(2), as applied to veterans such as Mr. Rudisill with two or more periods of qualifying military service?”

Oral Argument

Tomorrow, the court is hearing oral argument in Taylor v. McDonough, another veteran’s case addressing whether equitable estoppel may be used against the government to establish the effective date of a veteran’s award of benefits. For more information, see our argument preview. We plan to post an argument recap next week.

En Banc Petitions

As for patent cases, here is the latest activity:

New Responses

In Corephotonics, Ltd. v. Apple Inc., the acting director of the USPTO, Commissioner Hirshfeld, filed an intervenors response to Corephotonic’s petition for rehearing en banc. In its petition, Corephotonics argued “the review of the Board’s decision in the IPR here . . . was not the constitutionally required Director Review mandated by United States v. Arthrex.” Corephotonics further argued that the case should be “remanded for a properly appointed Director to conduct the Direct Review.” In response, the USPTO argues that “the Supreme Court has long recognized that the Appointments Clause allows an inferior officer like Commissioner Hirshfeld to perform the duties of a vacant principal on a temporary basis” and “Corephotonic’s argument is ultimately at odds with Arthrex itself.”

In Biogen International GmbH v. Mylan Pharmaceuticals Inc., Mylan Pharmaceuticals filed its response to Biogen’s petition for rehearing en banc. In it’s petition, Biogen argued the panel “applied a heightened written description standard,” which required “disclosure of actual reduction to practice, such as data proving clinical efficacy, rather than ‘a written description of the invention.'” Biogen also argued the panel “incorrectly deferred to the district court’s factual findings while expressly declining to consider errors law underlying those findings.” In response, Mylan argues “the majority did not misapprehend the law – Biogen misapprehends the majority’s opinion” and the case “turned on a factual dispute.” Mylan contends that the majority affirmed “because the district court did not clearly err in making that a factual finding and no because it required some type of heightened description, which it did not.”

New Invitation to Respond

The Federal Circuit invited a response to the petition in Western Plastics, Inc. v. DuBose Strapping, Inc., which raised questions relating to conflicts of interest and due process.

New Amicus Brief

The court received a new amicus brief in Astrazeneca AB v. Mylan Pharmaceuticals Inc. from the Pharmaceutical Research and Manufacturers of America (PhRMA) in support of en banc rehearing. In it’s brief, PhRMA argues the “majority’s decision sows confusion over how courts should interpret numbers in patent claims” which will cause “more litigation and increase unpredictability” and “frustrat[e] incentives to innovate.”