This morning the Federal Circuit issued a precedential order in a patent case denying panel rehearing and rehearing en banc. Notably, Judge Lourie dissented from the denial of rehearing en banc, and his opinion was joined by Chief Judge Moore and Judge Newman. In the dissenting judges’ view, the panel decision confused patent law’s written description requirement. In addition to this order, the court also issued a nonprecedential opinion in a case appealed from the Court of Federal Claims concerning attorneys’ fees. Finally, late yesterday the court issued a nonprecedential order concerning a voluntary dismissal. Here are the introductions to the order and opinions.

BioGen International Gmbh v. Mylan Pharmaceuticals Inc. (Precedential Order)

Biogen International BmbH and Biogen MA, Inc. filed a combined petition for panel rehearing and rehearing en banc. A response to the petition was invited by the court and filed by Mylan Pharmaceuticals Inc. The court also accepted amicus briefs filed by Biotechnology Innovation Organization, Chemistry and The Law Division of the American Chemical Society, and Pharmaceutical Research and Manufacturers of America. The petition was referred to the panel that heard the appeal, and thereafter the petition was referred to the circuit judges who are in regular active service. The court conducted a poll on request, and the poll failed.

Upon consideration thereof,


The petition for panel rehearing is denied.

The petition for rehearing en banc is denied.

The mandate of the court will issue on March 23, 2022.

LOURIE, Circuit Judge, with whom MOORE, Chief Judge, and NEWMAN, Circuit Judge, join, dissenting from the denial of the petition for rehearing en banc

Today, by denying rehearing en banc, the judges of this court have let a panel majority opinion stand that imports extraneous considerations into the written description analysis and blurs the boundaries between the written description requirement and the other statutory requirements for patentability. In doing so, the court has contributed to the muddying of the written description requirement. Accordingly, I respectfully dissent from that denial.

Monroe v. United States (Nonprecedential)

The United States appeals from the final decision of the United States Court of Federal Claims (“Claims Court”), granting Plaintiff-Appellee Allen H. Monroe’s claim for attorneys’ fees and expenses pursuant to the Equal Access to Justice Act (“EAJA”). Monroe v. United States, 150 Fed. Cl. 786, 789 (2020). Jurisdiction for the appeal lies under 28 U.S.C. § 1295(a)(3). For the reasons set forth below, we reverse.

Zimmer Inc. v. International Trade Commission (Nonprecedential Order)

Upon consideration of the parties’ joint stipulation to voluntarily dismiss this appeal, which the court construes as a motion to voluntarily dismiss,


(1) The motion is granted to the extent that the appeal is dismissed.

(2) Each side shall bear its own costs.