En Banc Activity

Here is an update on recent en banc activity at the Federal Circuit in patent cases. Highlights include the only pending en banc case reaching oral argument, a new petition for rehearing regarding literal infringement, and a denial of a petition raising a question concerning the meaning of an alleged “coined term.” Here are the details. 

En Banc Case

In the only pending en banc case, LKQ Corporation v. GM Global Technology Operations LLC, the court held oral argument on Monday, February 5. In this case, the Federal Circuit is considering whether to adopt a more flexible test for analyzing design patent obviousness compared to the existing “Rosen-Durling” test. We will post our argument recap soon.

New Petition

A new petition was filed since our last update. Appellant Intel Corporation filed a petition for rehearing in VLSI Technology LLC v. Intel Corporation. In its petition, Intel asks the Federal Circuit to review the following questions:

  1. Whether “[t]he panel affirmed the literal-infringement judgment for the ’373 patent because it concluded that the jury could have reasonably found that the voltage source for the C6SRAM memory in Intel’s products ‘switches at the time that VCCR voltage drops below the minimum for C6 SRAM’s data retention— RING_RETENTION_VOLTAGE.'”
  2. Whether “[t]he panel also misapprehended Intel’s non-infringement argument with respect to the ‘when’ claim limitations.


The Federal Circuit denied a petition for rehearing in Malvern Panalytical Inc. v. TA Instruments-Waters LLC. This petition asked the Federal Circuit to review the following question: “[w]hat standard should courts apply when determining whether a claim term is a ‘coined term,’ i.e., a term that has no ordinary meaning to skilled artisans as of the filing of the patent application?”