En Banc Activity / Petitions

Here is an update on recent en banc activity at the Federal Circuit. In a pending en banc veterans case, the Secretary of Veterans Affairs filed the government’s opening brief. As for pending petitions, the United States motioned for limited remand in a case raising questions related to the Appointments Clause; the court invited responses to two petitions raising questions related to means-plus-function limitations in patent claims; the court received a response to a petition raising questions related to the scope of usable prior art in inter partes review proceedings; and the court received an amicus brief supporting rehearing in one of the petitions raising questions related to means-plus-function limitations. Here are the details.

En Banc Cases

Opening Brief

Earlier this month, the Secretary of Veterans Affairs, Denis McDonough, filed the government’s opening brief in the pending en banc case Rudisill v. McDonough. In its brief, VA argues “the Veterans Court erred when it wrested veterans with multiple periods of service from the very coordination provisions—the ‘good’ and the ‘bad’—that Congress enacted to address the dual entitlement such additional service enables.” VA explains that the veterans statute “expressly and unambiguously limits the statutory entitlement to Post-9/11 benefits based on how the veteran chooses to use his or her dual entitlement, not on how he or she earned it.” VA further argues the “Veterans Court erred when it imposed a further ‘single period of service’ condition . . . and thereby expanded Mr. Rudisill’s entitlement to Post-9/11 benefits beyond the limits Congress explicitly imposed.”

En Banc Petitions

Motion for Limited Remand

In Corephotonics, Ltd. v. Apple Inc., the United States motioned for a limited remand to provide the new, Senate-confirmed Director of the U.S. Patent Trademark Office, Katherine Vidal, “with the opportunity to consider whether to rehear the Patent Trial and Appeal Board[‘s] decision.” The United States explains that, “[b]y ordering a limited review, the Court can obviate appellant’s constitutional and statutory challenges to the denial of Director review issued by Andrew Hirshfeld.” Although Apple does not oppose the motion for limited remand, Corephotonics does oppose the motion.

New Invitations for Responses

The Federal Circuit invited responses to petitions in the following cases:

New Response

In Qualcomm Inc. v. Apple Inc., which raises questions related to the scope of usable prior art in inter partes review proceedings, Qualcomm filed a response to Apple’s petition for rehearing en banc. In the response, Qualcomm argues that “Apple does not present any reason for the full Court to rehear this case en banc—Apple does not raise any factual or legal issue that was not considered by the panel, nor does it raise any intervening or subsequent law since the briefing and oral argument.”

New Amicus Brief

The Federal Circuit received an amicus brief in Dyfan, LLC v. Target Corp.. The amicus brief was filed by a group of intellectual property professors in support of rehearing en banc. The professors argue that the “panel opinion is inconsistent with this Court’s en banc decision in Williamson v. Citrix” and that “[t]his Court should grant rehearing en banc in order to preserve the integrity of the Court’s en banc process and to avoid the reintroduction of pure functional claiming of software in violation of the language of the statute.”