En Banc Activity / Petitions

Here is an update on recent en banc activity at the Federal Circuit. In the only pending en banc case, a veterans case, the court received the appellee’s supplemental brief. As for patent cases, the court received a new petition raising a question related to the ability to revise infringement contentions during litigation and denied two petitions raising questions related respectively to vacatur of a preliminary injunction and claim construction. Here are the details.

En Banc Case

In the only pending en banc case, a veterans case entitled Taylor v. McDonough, VA filed its supplemental reply brief. In Taylor’s supplemental brief, he argued that the Supreme Court’s decision in “Arellano . . . supports estopping the government.” He explains that, “[b]y barring the Executive Branch from using threats of criminal prosecution to disrupt Congress’s carefully designed veterans’ benefits scheme, equitable estoppel prevents the Executive Branch from disrupting Congress’s design, thereby vindicating the principle that the Supreme Court enunciated in Arellano.”

In response, VA argues the Supreme Court’s reasoning in Arellano “demonstrates that Mr. Taylor’s request to apply equitable estoppel not only conflicts with the Appropriations Clause, but also Congress’s statutory scheme for veteran’s benefits.” VA argues the Supreme Court “rejected applying equitable tolling . . . because there was good reason for the Court to believe that Congress did not want this equitable doctrine applied to the statute.” VA says the Court construed the text as including “an exhaustive list of exceptions, with each confined to tis specific term,” including many with equitable considerations. But, VA argues, Congress “nonetheless ‘capped retroactive benefits at roughly one year.'” According to VA, “because the Supreme Court in Arellano held that the list of 16 exceptions in [the statute] is exclusive such that equitable tolling is unavailable, the same exclusivity should apply to equitable estoppel, which is also not on the list of exceptions.”

En Banc Petitions

New Petition

In Astellas US LLC v. Hospira, Inc., Astellas asked the en banc court to review the following question:

  • “Whether a district court abuses its discretion when it permits an ANDA filer to change its product mid-litigation, for the very purpose of attempting to design around the patent-holder’s theory of infringement, but denies the patent-holder an opportunity to respond with revised infringement contentions and supporting evidence demonstrating that the new product defined by that ANDA also infringes.”

New Denials

Since our last update, the Federal Circuit has denied the petitions in the following cases: