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 transfers of cases and the ability of a Federal Circuit panel to nullify or render advisory an earlier judgment of the court. The court also received a response to a petition raising questions related to means-plus-function limitations. Here are the details.
En Banc Petitions
In In re Google LLC, AGIS Software Development LLC asked the en banc court to review the following question:
- Whether “the Panel incorrectly applied the ‘center of gravity’ factor rather than the binding Fifth Circuit private and public factors under In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004).”
In Atlanta Gas Light Co. v. Bennett Regulator Guards, Inc., Atlanta Gas Light asked the court to review the following question:
- “Is a lower tribunal permitted, consistent with both its and this Court’s jurisdiction, to nullify or render advisory an earlier judgment of this Court?”
In Dyfan, LLC v. Target Corporation, Dyfan filed a response to Target’s petition for rehearing en banc. In its petition, Target argued that the court “misapplied the Williamson v. Citrix Online legal standard for determining whether functional claim language recites the requisite ‘structure, material or acts in support’ of ‘performing [the] specified function’ to avoid the application of 35 U.S.C. § 112(6).” In response, Dyfan argues that the court should hold “that software claims with functional language are not subject to [§ 112(6)] when they recite terms of art, describe the limitation’s operation, and a person of skill would have been aware of suitable conventional software.”