En Banc Activity

Here is an update on recent en banc activity at the Federal Circuit. Highlights include an upcoming oral argument in the only pending en banc case–a design patent case–and a new petition for rehearing in another patent case presenting a question regarding the printed matter doctrine. The court also denied two petitions in other patent cases. Here are the details.

En Banc Case

In the only pending en banc case, LKQ Corporation v. GM Global Technology Operations LLC, oral argument will take place on this coming Monday, February 5. In this case, LKQ Corporation and Keyston Automotive Industries Inc. argue the Federal Circuit should eliminate the existing Rosen-Durling test for design patent obviousness and replace it with “what an ordinary designer would actually have found obvious.” Check out our argument preview for more information.

En Banc Petitions

New Petition

Since our last update, Nespresso USA filed a petition for rehearing in K-fee System GmbH v. Nespresso USA, Inc. In this case, Nespresso USA asks the Federal Circuit to consider “[w]hether the printed matter doctrine requires that a claim limitation bearing on patentability must have some functional relationship to the claim.”


Since our last update, the Federal Circuit denied two petitions for rehearing.

First, the court denied rehearing in In re Cellect, LLC, in which the Federal Circuit was asked to review the following questions:

  1. “Whether the statutory language and legislative history of the patent term adjustment statute, 35 U.S.C. § 154(b), as well as this Court’s precedent, instruct that it should be interpreted consistent with the patent term extension statute, 35 U.S.C. § 156, for purposes of determining the expiration date for an obviousness-type double patenting analysis.”
  2. “Whether the Panel’s decision overlooked the policy grounds underlying the judicially created obviousness-type double patenting doctrine in a manner that usurps Congress’ legislative function.”

Second, the Federal Circuit denied rehearing in Jager Pro, Inc. v. W-W Manufacturing Co., in which the petitioner asked the court to review “[w]hat is required for a patent owner to be accorded the presumption of nexus between a commercial product and challenged patent claims.”