Here is an update on recent en banc activity at the Federal Circuit in patent cases. The court received a response to a petition raising a question related to the ability of a Federal Circuit panel to nullify or render advisory an earlier judgment of the court. The court also received an amicus brief supporting rehearing in a case raising questions related to the Federal Vacancies Reform Act and the grounds for inter partes review. Finally, the court denied a petition in a case raising questions related to the court’s grant of a petition for a writ of mandamus to order transfer of a case from the Western District of Texas to the Northern District of California. Here are the details.
En Banc Petitions
In Atlanta Gas Light Co. v. Bennett Regulator Guards, Inc., Bennett Regulator Guards filed a response to Atlanta Gas Light’s petition for panel rehearing or rehearing en banc. In its petition, Atlanta Gas Light argued that “the panel majority’s precedential opinion hands the Patent Trial and Appeal Board broad new authority to wipe out judgments of [the Federal Circuit].” Atlanta Gas Light further argued that “the majority has opened the door for the Board to undo a completed inter partes or post-grant review, including this Court’s judgment reviewing the Board’s final written decision, and to do so based on nothing more than a shift in the Patent Office’s own policies.”
In response, Bennett Regulator Guards argues that panel rehearing or rehearing en banc is not warranted because “[the case] does not meet the criteria set for in Federal Rules of Appellate Procedure 35 and 40.” Bennett Regulator Guards further contends that “[Atlanta Gas Light’s] position effectively amends 35 U.S.C. § 314(d) and creates an unwritten exception to case law.” Moreover, says Bennett Regulator Guards, “[t]his Court should reject [Atlanta Gas Light’s] backdoor attempt to obtain any benefit from its unlawfully instituted and now-terminated IPR.”
New Amicus Brief
The Federal Circuit received an amicus brief in Arthrex, Inc. v. Smith & Nephew, Inc., which raises questions related to the Federal Vacancies Reform Act and the grounds for inter partes review proceedings. The amicus brief was filed by Ron D. Katznelson in support of Arthrex’s petition for panel rehearing and rehearing en banc. Katznelson argues that the “Panel’s decision would disrupt established precedents for using Presidential designation of government officials in an Activity capacity to temporarily serve in a vacant position of a Presidentially-Appointed and Senate-confirmed (‘PAS’) officer.” Katznelson further contends that, based “[o]n the Panel reasoning, dozens of agencies with PAS offices can bypass the FVRA and create Acting officers in all but name, who can hold their office indefinitely and wield substantial powers of heads of agencies without Presidential accountability and Senate consent.” Indeed, says Katznelson, “[i]f not reversed, the impact of this decision would go well beyond the PTO.”
The Federal Circuit denied BillJCo’s petition for panel rehearing and rehearing en banc in In re Apple Inc., a case that raised questions related to the court’s grant of a petition for a writ of mandamus to order transfer of a patent case from the Western District of Texas to the Northern District of California.