Here is an update on recent en banc activity at the Federal Circuit in patent cases. The court received three petitions, one raising questions related to subject matter eligibility and two raising questions related to the applicable test for non-obviousness of designs under design patent law. The court invited a response to the petitions raising questions related to the applicable test for non-obviousness of designs under design patent law. Finally, the court denied a petition raising a question related to claim construction. Here are the details.
En Banc Petitions
New Petitions
In C.R. Bard, Inc. v. Medical Components, Inc., Medical Components asked the en banc court to review the following questions:
- Whether “Bard’s asserted claims were eligible after the district court assumed Bard’s proposed construction for purposes of summary judgment under § 101.”
In LKQ Corporation v. GM Global Technology Operations LLC, LKQ asked the en banc court to review the following questions:
- “Whether the rigid approach to evaluating the obviousness of designs under In re Rosen, 673 F.2d 388, 391 (CCPA 1982) and Durling v. Spectrum Furniture Co., Inc., 101 F.3d 100 (Fed Cir. 1996) is consistent with the Supreme Court’s interpretation of 35 U.S.C. § 103 in KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398 (2007).”
- “What standard, consistent with KSR and 35 U.S.C. § 171, should replace the current requirement that a patent challenger identify a primary reference that is basically the same as the claimed design as a prerequisite to evaluating obviousness and the further limitation that allows modification of the primary reference only if there is a secondary reference that is ‘so related’ to the primary reference that the appearance of certain ornamental features in one would suggest the application of those features to the other.”
In LKQ Corporation v. GM Global Technology Operations LLC, LKQ also filed a separate petition for another patent asking the en banc court to review the same questions.
New Invitation for Response
The Federal Circuit invited a response to the petitions in both LKQ Corporation v. GM Global Technology Operations LLC cases identified above (the case pages are here and here), which as just discussed raised questions related to the applicable test for non-obviousness of designs under design patent law.
New Denial
The Federal Circuit denied the petition for rehearing en banc in IPA Technologies Inc. v. Amazon.com, Inc., which asked the court to review a question related to claim construction.