En Banc Activity
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Here is an update on recent en banc activity at the Federal Circuit in patent cases. Highlights include new petitions filed in four cases raising questions about the non-obviousness and novelty patentability requirements, the definiteness requirement, and principles of claim construction. The court also denied two petitions raising questions about eligibility and infringement. Here are the details.

New Petitions

New petitions were filed in four cases.

In KEYnetik, Inc. v. Samsung Electronics Co., KEYnetik asked the en banc court to review the following question:

  • “Whether an obviousness determination can be sustained as legally sufficient based solely on a statement describing a modification to prior art, as already described in the invention itself, as ‘simple’ and ‘straightforward.'”

In VR Optics, LLC v. Peloton Interactive, Inc., VR Optics asked the en banc court to review the following question:

  • “Whether a court may find a claim anticipated under 35 U.S.C. § 102 based on a single reference, when there is no finding from the court that the reference discloses each and every limitation of the claim as construed.”

In Ironburg Inventions Ltd. v. Valve Corporation, Valve Corporation asked the en banc court to review the following questions:

  1. “Whether this Court may presume a district court considered and rejected issues and evidence presented, where the district court failed to address them and failed to provide sufficient detail by which it reached its ultimate determination.”
  2. “Whether patent claims requiring measurement of a property are indefinite where the patent lacks reasonable certainty in sufficiently teaching an ordinary artisan how to make the measurement.”
  3. “Whether a party can forfeit its ability to rely on a specific case on appeal, if not cited to the district court, where the underlying issue or principle had been raised.”

In Salazar v. AT&T Mobility LLC, Salazar asked the en banc court to review the following questions:

  1. “Whether the Court should expand what has been an extremely limited exception to the well-established general rule of claim construction, that indefinite articles ‘a’ or ‘an’ mean ‘one or more’ in open-ended claims containing the transitional phrase ‘comprising’ and that subsequent use of definite articles ‘the’ or ‘said’ to refer back to the same claim term reinvokes the non-singular meaning.”
  2. “Whether the panel’s expansion of the exception to the general rule will result in patent claims being unjustifiably narrowed where nothing in the prosecution history, specification, or claim language evinces a clear intent or need to narrow such claims.”

New Denials

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