En Banc Activity

Here is an update on recent en banc activity at the Federal Circuit. Highlights include the filing of a reply brief filed in the only pending en banc case, a design patent case addressing the non-obviousness requirement; the filing of a new petition for rehearing in another patent case; and the denial of a petition for rehearing in a case raising a question about venue. Here are the details.

En Banc Case

Since our last update, in the only en banc case pending at the Federal Circuit, LKQ Corporation v. GM Global Technology Operations LLC, LKQ Corporation and Keystone Automotive Industries filed their reply brief. They argue for the elimination of the current test for non-obviousness for design patents. They contend the correct test should be “what an ordinary designer would actually have found obvious.”

Pending Petitions

New Petition

Since our last update, Nichia Corporation filed a new petition for rehearing in Nichia Corporation v. DSS, Inc., a patent case presenting the following questions:

  1. Was “the Board’s disposition of Nichia’s IPR Reply arguments that were based on the non-planar construction of ‘mounting surface’ proposed by DSS and ultimately adopted by the Board?”
  2. And “if the panel did not overlook Nichia’s alternative IPR Reply arguments made in response to DSS’s post-institution construction of ‘mounting surface,’ but rather held that it did not need to reach them, [whether] such a position conflicts with this Court’s precedential decision Axonics, Inc. v. Medtronic, Inc.?”


The Federal Circuit also denied rehearing in In re Ring Central, Inc., which raised the question of whether facts supporting venue must exist when a suit is brought.