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 claim construction; a new response to a petition raising questions related to an alleged conflict of interest and summary affirmances; and a new amicus brief in support of a petition raising a question related to the written description requirement. Finally the court denied a petition for rehearing en banc raising questions related to inducement of infringement and an evidentiary rule. Here are the details.
En Banc Petitions
New Petitions
In Evolusion Concepts, Inc. v. Hoc Events, Inc., Juggernaut Tactical, Inc. asked the en banc court to review the following question:
- “When a patentee says that ‘the invention is’ something—a phrase that appears in countless patents—is the interested public entitled to rely on that statement when determining the scope of the claims for that invention?“
In Polygroup Limited MCO v. Willis Electric Co., Willis Electric Co. asked the en banc court to review the following question:
- Whether “the panel decision is contrary to the following decisions of the Supreme Court of the United States or the precedents of this court: D’Agostino v. MasterCard Int’l Inc., 844 F.3d 945 (Fed. Cir. 2016); McClain v. Ortmayer, 141 U.S. 419 (1891); Nike, Inc. v. Adidas AG, 812 F.3d 1326 (Fed. Cir. 2016); Fed. Power Comm’n v. Idaho Power Co., 344 U.S. 17 (1952); Gonzales v. Thomas, 547 U.S. 183 (2006); Engel Indus., Inc. v. Lockformer Co., 166 F.3d 1379 (Fed. Cir. 1999).”
New Response
In Western Plastics, Inc. v. DuBose Strapping, Inc., Western Plastics filed its response to DuBose Strapping’s petition for rehearing en banc. In its petition, DuBose Strapping argued that because Judge Stoll “is the sister-in-law of Robert Stoll, WP’s expert witness on the issue of inequitable conduct” there was “an appearance of impropriety that should not be overlooked.” DuBose also sought rehearing on the basis that the panel did not provide an opinion but merely a summary affirmance. In response, Western Plastics now argues that “DuBose has not demonstrated that consideration of any of the issues raised in the motion are ‘necessary to secure or maintain uniformity of the court’s decisions’ or ‘involve[] a question of exceptional importance,’ as required by Federal Circuit Rule 35(a)(2) and Fed. R. App. P. 35(a)(2).” Moreover, it argues that “DuBose’s challenge to Judge Stoll . . . is premised on a blatant falsehood,” and that “[t]he rest of DuBose’s motion is nothing more than a re-hash of the same arguments on the merits concerning validity, lost profits[,] and inequitable conduct that it already presented to the jury, the District Court, and this Court on appeal.” Finally, notably, Western Plastics “respectfully requests that sanctions be awarded here” because “[t]he purported bases for a rehearing en banc are exceptionally weak, and, in multiple instances, are based on misrepresentations.”
New Amicus Brief
The court received a new amicus brief in Indivior UK Limited v. Dr. Reddy’s Laboratories S.A. from The Chemistry and The Law Division of the American Chemical Society in support of en banc rehearing. In its brief, The Chemistry and The Law Division of the American Chemical Society argues the “majority’s decision . . . seems to dismiss the written description standard established by this Court and its predecessor courts in cases such as In re Werthheim” and “would require a heightened standard for patent prosecution that conflicts with th[e] statute and precedent.”
New Denial
The Federal Circuit denied the petition for rehearing en banc in Alpek Polyester, S.A. de C.V. v. Polymetrix AG, a case that raised questions related to inducement of infringement and an evidentiary rule.