En Banc Activity / Petitions
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Here is an update on recent en banc activity at the Federal Circuit. In a pending en banc veterans case, the court received two amicus briefs in support of the appellee, a veteran. The court also received two new petitions raising questions related to obviousness-based inherency of claims, the Federal Vacancies Reform Act, and the grounds for inter partes review proceedings. Finally, the court denied two petitions for rehearing en banc raising questions related to means-plus-function limitations. Here are the details.

En Banc Cases

The court received two new amicus briefs in Rudisill v. McDonough, a veterans case raising questions related to a veteran’s statutory entitlement to education benefits under the Montgomery GI Bill and the Post-9/11 GI Bill. Both amicus briefs were filed in support of the appellee, Rudisill, a veteran.

The National Veterans Legal Services Program (NVLSP) filed its brief to “explain more fully how the history and purposes of the many GI Bill programs established by Congress, dating back to World War II, support veterans’ right to dual earned benefits, as does the fundamental canon that requires construing legislation in favor of veterans’ interests.” The NVLSP, moreover, argues that “the Court may dismiss the Government’s appeal for lack of jurisdiction because the Solicitor General did not authorize appeal within the statutory time limitation.”

In the second amicus brief, several veterans impacted by the decision argue that “VA’s interpretation of 38 U.S.C. § 3327(d) harms veterans and military families by cutting down their months of benefits from 48 to 36 months.”

Here are the briefs:

En Banc Petitions

New Petitions

In Cornell Research Foundation, Inc. v. Vidal, Cornell Research Foundation asked the en banc court to review the following questions:

  1. “Does absence of inherency data in the prior art and only general conclusory expert opinion qualify to meet the ‘high standard’ required for obviousness based inherency of claim limitations that require specific data of temperature and time constraints, when there is evidence in the prior art of unpredictability of the alleged inherency?”
  2. “Can inventor’s data of unexpected results in the patent specification be used as evidence of prior art obviousness based inherency of claims that require specific data of temperature and time constraints?”

In Arthrex, Inc. v. Smith & Nephew, Inc., Arthrex asked the en banc court to review the following questions:

  1. “Whether the Patent and Trademark Office’s delegation of authority to Commissioner Hirshfeld to review final decisions of the Patent Trial and Appeal Board during a vacancy in the Director’s office violates the Federal Vacancies Reform Act.”
  2. “Whether 35 U.S.C. § 311(b)’s restriction ‘only on a ground that could be raised under section 102 or 103’ permits IPR challenges that depend solely on compliance with the written description requirement of section 112.”

New Denials

Since our last update, the Federal Circuit has denied the petitions in the following cases: