En Banc Activity / Petitions

Here is an update on recent en banc activity at the Federal Circuit. The en banc court issued a long-awaited opinion last week in a veterans case addressing the question of a veteran’s statutory entitlement to education benefits under the Montgomery GI Bill and the Post-9/11 GI Bill. As for petitions in patent cases, the court invited a response to a petition raising a question related to the written description requirement and received two amicus briefs supporting rehearing in the same case. Here are the details.

En Banc Case

In an en banc veterans case, Rudisill v. McDonough, the court issued an opinion along with two dissenting opinions each representing the individual members of the court. In the opinion, the court held that “Section 3327 applies to Mr. Rudisill and limits his Post-9/11 benefits to 10 months and 16 days, the amount of his unused Montgomery entitlement.” Additionally, two judges released dissents advocating that Rudisill “did not forfeit his entitlement to the additional months of Post-9/11 benefits earned by re-enlistment.” For an in depth summary of the court’s disposition of this case, see our opinion summary, which will be published later this week.

En Banc Petitions

New Invitation for Response

The Federal Circuit invited a response to the petition in In re Monolithic Power Systems, Inc., which raised a question related to the standard for establishing venue.

New Amicus Briefs

The court received two new amicus briefs supporting panel and en banc rehearing in the same case, In re Monolithic Power Systems, Inc., which, again, raised a question related to the standard for establishing venue.

In the first amicus brief, the National Retail Federation (NRF) argues that “[i]t is past time that this Court established whether and under what conditions the presence of home-based employees creates patent venue.” The NRF elaborates that the “[u]ncertainty over this question, and the broader issue of whether incidental and non-public facilities make a business amenable to infringement litigation within a district, is affecting the planning decisions of hundreds of businesses and the lives of thousands of their employees.” Furthermore, the NRF proposes two general rules for adoption by the court: (1) “a ‘regular and established place of business’ is [a] place where a substantial portion of the defendant’s characteristic activities are performed, and (2) “a home is not a ‘regular and established place of business’ when a company principally operates from physical offices.”

In the second amicus brief, the Computer & Communications Industry Association (CCIA) argues that the panel decision “creates serious concerns regarding remote work at the very moment that remote work has become of serious societal importance and value,” “ignores the clear Congressional statements regarding the relationship between the regular and established place of business and acts of infringement,” and “ignores this Court’s precedent regarding what constitutes a regular and established place of business.” The CCIA further argues that “treat[ing] an employee’s home as a ‘regular and established place of business’ creates the potential for a serious negative impact on employers.” The CCIA elaborates that “the panel relied on the fact that some of the equipment is of a type ‘which is not typically found in a generic home office,'” but argues “that this logic applies far more broadly than is appropriate.”

Here are the briefs: