Here is an update on recent en banc activity at the Federal Circuit in patent cases. The court received a petition raising questions related to claim construction and another petition raising questions related to prosecution laches, and the court also invited a response to the same petition raising questions related to prosecution laches. Here are the details.
En Banc Petitions
In Infernal Technology, LLC v. Activision Blizzard Inc., Infernal Technology asked the en banc court to review the following questions:
- “An open-ended claim term, such one using the term ‘at least,’ includes, but is not limited to, one or more of the specified items of data, and may or may not include additional unspecified data. Can this open-ended scope of such a claim term be nullified or modified based upon the evidence relied upon to prove infringement?”
- Whether “the Court [can] use the term ‘said’ to modify the undisputed construction of the term?”
In Personalized Media Communications, LLC v. Apple Inc., Personalized Media Communications asked the en banc court to review the following questions:
- “May a court declare a patent unenforceable under the doctrine of prosecution laches based on actions an applicant took in compliance with an examination agreement reached with the PTO?”
- “Must prosecution laches, like inequitable conduct, be proven by the accused infringer by clear and convincing evidence?”
New Invitation for Response
The Federal Circuit invited a response to the petition in Personalized Media Communications, LLC v. Apple Inc., which as just discussed raised questions related to prosecution laches.