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 government filed its en banc reply brief. The court also received a new petition in a case raising a question related to the written description requirement. Here are the details.

En Banc Cases

New Reply Brief

The government filed its en banc reply brief in Rudisill v. McDonough, a pending en banc veterans case. This case raises questions related to a veteran’s statutory entitlement to education benefits under the Montgomery GI Bill and the Post-9/11 GI Bill and the correct entitlement period when considering both bills and multiple qualifying periods of service.

In its opening brief, VA argued that 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.” In response, Rudisill argued that “a veteran entitled to the Montgomery and Post-9/11 GI Bills based on separate periods of qualifying service is entitled to 36 months of benefits under each program, subject only to [38 U.S.C.] § 3695(a)’s 48-month aggregate cap.” Rudisill further contends that “the relationship between § 3695(a) and [38 U.S.C.] § 3327(d)(2) is that the former limits the total months of benefits a veteran can receive under all programs listed in § 3695(a)(1)-(7) to 48, regardless of how many periods of qualifying service the veteran has, while the latter limits the months of Post-9/11 benefits a veteran can obtain for any single period of qualifying service when a veteran exchanges previously established Montgomery benefits for Post-9/11 benefits.”

Now, in its reply brief, VA argues that “Mr. Rudisill’s entitlement to Post-9/11 benefits is limited to the number of months of his unused Montgomery benefits precisely because Mr. Rudisill voluntarily elected to use Post-9/11 benefits having ‘used, but retain[ed] unused’ Montgomery benefits.” VA further contends that “[Rudisill’s] argument tries to limit [38 U.S.C.] § 3327 as existing only to undo the election Congress mandated in § 3322(h)(1).” Moreover, says the government, “[this] approach is unsupported by logic, history, practical reality, or the language of either provision.” Thus, VA argues that “[t]his Court should reject [Rudisill’s approach] in favor of the straightforward application of the terms of an unambiguous statute.”

En Banc Petitions

New Petition

Earlier this month, we reported that a panel of the Federal Circuit granted panel rehearing in Novartis Pharmaceuticals v. Accord Healthcare Inc. and denied as moot the petition for rehearing en banc filed by HEC Pharm Co., Ltd. and HEC Pharm USA Inc. That panel, comprised of different judges compared to the panel that issued the original opinion, vacated the original panel’s decision and reversed the district court’s judgment. This week, Novartis Pharmaceuticals Corp. filed a new petition for panel rehearing and rehearing en banc, asking the court to consider the following question:

  • “Whether 35 U.S.C. §112 and this Court’s precedent require that, to have adequate written description, a claim limitation must be either expressly disclosed in the specification or necessarily present in some express disclosure, even if a skilled artisan would otherwise read the specification to disclose possession of the limitation.”