Here is an update on recent en banc activity at the Federal Circuit in patent cases. The court invited a response to a petition raising a question related to the written description requirement. The court also received two amicus briefs supporting rehearing in the same case. Here are the details.
En Banc Petitions
New Invitation for Response
The Federal Circuit invited a response to the petition in Novartis Pharmaceuticals Corp v. Accord Healthcare, Inc., which raised a question related to the written description requirement.
New Amicus Briefs
The court received two new amicus briefs supporting panel and en banc rehearing in the same case, Novartis Pharmaceuticals Corp v. Accord Healthcare, Inc., which, again, raised a question related to the written description requirement.
A group of law professors and civil procedure scholars filed an amicus brief arguing that the “series of procedural events [that occurred in this case were] contrary to this Court’s rules and precedent.” The group further contends that the events “run against longstanding tradition in the federal courts that panel rehearing may be granted only with the vote of at least one judge in the original majority.” Moreover, argues the group, “[t]he startling outcome here will encourage more parties to bring the most inefficient, vexing and unproductive type of rehearing petition: one that merely rehashes the merits of arguments that the panel has already rejected.”
In the second brief, a group of intellectual property law professors argues that, “[w]hile the second panel decision states that it creates no new written description standard, that is incorrect.” The group maintains that “the decision suggests that the new standard should apply equally to positive and negative limitations,” and “[this] new standard for limitations other than those expressly in the written description is contrary to Federal Circuit precedent.” The group further contends that this decision “will deprive patentees of the ability to limit claims to avoid the prior art through negative limitations.”
Here are the briefs:
- Brief of Amici Curiae Law Professors and Civil Procedure Scholars in Support of Petition for Panel and En Banc Rehearing