En Banc Activity / Petitions

Here is an update on recent en banc activity at the Federal Circuit in patent cases. The court received a new petition raising questions related to the standard for claim construction. The court also denied a petition in a case raising a question related to burden of persuasion in inter partes review proceedings. Here are the details.

En Banc Petition

New Petition

In Finjan LLC v. ESET, LLC., ESET asked the en banc court to review the following questions:

  1. “Whether a District Court’s construction of a claim term in an asserted patent, determined to be consistent with a totality of the evidence based on analysis of conflicting definitions provided in multiple incorporated-by-reference patents, should be reviewed for clear error as required by Teva.”
  2. “Where an inventor, acting as his own lexicographer, defined a claim term to have multiple conflicting meanings, may this Court, notwithstanding PhillipsModine, and X2Y Attenuators, construe that term differently from the inventor’s own definitions?”

New Denial

The Federal Circuit denied the petition for rehearing en banc in Nike, Inc. v. Adidas AG, which asked the court to review a question concerning the burden of persuasion in an inter partes review. In particular, the petition focused on the burden of persuasion regarding an unpatentability ground the Board raises sua sponte against proposed substitute claims.