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 an employment case addressing the question of whether on-the-job exposure to the recent novel coronavirus entitled federal correctional officers to additional pay pursuant to various federal statutes. As for petitions in patent cases, the court received a new petition raising a question related to claim construction and denied a petition in a case raising a question related to the terms of a protective order. Here are the details.

En Banc Case

In an en banc employment case, Adams v. United States, the court issued a majority opinion along with a dissenting opinion. In the majority opinion, the court explained that the Office of Personnel Management “simply has not addressed contagious-disease transmission (e.g., human-to-human, or through human-contaminated intermediary objects or surfaces) outside two settings not present here.” And while “OPM might well be able to provide for differential pay based on COVID-19 in various workplace settings, it has not to date adopted regulations that do so.” By contrast, the dissenting opinion concluded that the appellant “pleaded sufficient facts to satisfy both key elements needed to plead” hazardous duty pay and environmental duty pay. For an in depth summary of the court’s opinions in this case, see our opinion summary.

En Banc Petitions

New Petition

In IPA Technologies Inc., v. Amazon.com, Inc., IPA Technologies asked the en banc court to review the following question:

  • Whether “[t]he panel decision affirming the district court’s determination that claim language stating a request must be ‘formed according to’ (or ‘in’ or ‘adhering to’) a language imposes: (1) the negative limitation that the request must not be in a ‘format’ and (2) the narrowing limitation that the request must utilize all the layers supported by the language is contrary to this Court’s decisions in Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) and Thorner v. Sony, 669 F.3d 1362 (Fed. Cir. 2012).”

New Denial

The Federal Circuit denied the petition for rehearing en banc in Modern Font Applications LLC v. Alaska Airlines, Inc., which asked the court to review questions concerning the terms of a protective order.