En Banc Activity / Petitions

Here is an update on recent en banc activity at the Federal Circuit. Highlights include a newly-filed petition for rehearing filed in a patent case presenting a question related to the non-obviousness requirement, along with a denial of a petition for rehearing in another patent case presenting a question related to inducement of infringement. Here are the details.

New Petition

Since our last update, a petition for rehearing was filed in Sun Pharmaceutical Industries, Inc. v. Incyte Corporation, a patent case. The petitioner presents the following question:

  • Whether “[t]he panel overlooked appellant’s argument that there was ‘a longfelt need for an effective AA treatment with a tolerable long-term side effect profile’ . . . . That is, [whether] the panel failed to recognize that appellant’s argument was not limited to a long-felt need for an already-FDA-approved AA treatment.”


The Federal Circuit also denied the petition for rehearing in United Therapeutics Corporation v. Liquidia Technologies, Inc., another patent case presenting the following question:

  • “Whether an Inter Partes Review Final Written Decision from the Patent Trial and Appeal Board rendering unpatentable all issued claims should be considered in assessing an accused infringer’s subjective intent to induce infringement and whether such a decision is sufficient to negate liability for induced infringement under 35 U.S.C. § 271(b).”