En Banc Activity

Here is an update on recent en banc activity at the Federal Circuit. Highlights include a new petition for rehearing in a patent case concerning inter partes review proceedings and prior art. Here are the details.

New Petition

Since our last update, United Therapeutics Corporation filed a petition for rehearing en banc in United Therapeutics Corporation v. Liquidia Technologies, Inc. In its petition, United Therapeutics asks the Federal Circuit to review the following questions:

  1. Whether “the Panel decision announced an unprecedented an unsupported legal standard for adjudicating the scope of [inter partes reviews].”
  2. Whether “the Panel’s holding that IPR petitioners need not provide any ‘evidence of actual existence’ of references asserted to be [35 U.S.C.] § 102(b) prior art conflicts with precedent.”

Notably, another petition in a case between these two parties was recently denied by the Federal Circuit. In that petition, Liquidia Technologies asked the Federal Circuit to review “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).” The Federal Circuit denied rehearing in that case in September.