En Banc Activity

Here is an update on recent en banc activity at the Federal Circuit. Highlights include a new petition filed in a patent case raising a question at the intersection of infringement and claim construction, along with a denial of a petition in another patent case raising questions related to the domestic industry requirement at the International Trade Commission. Here are the details.

New Petition

Since our last update, a new petition for rehearing was filed in tFreshub, Inc. v. Amazon.com, Inc. In this case, Freshub asks the Federal Circuit Court to review “[w]hether the Panel’s decision creates new law that contravenes this Court’s longstanding precedent that a system that only sometimes practices a claim is nevertheless infringing, by requiring a ‘narrowing’ claim construction before an infringement finding may be made.”


The Federal Circuit also recently denied rehearing in Roku, Inc. v. International Trade Commission. The petition in this case asked the Federal Circuit to review the following questions:

  1. Whether “[i]n affirming the U.S. International Trade Commission’s (ITC) determination that Universal Electronics, Inc. (UEI) satisfied the economic prong of the domestic industry requirement, the panel misapprehended that, under the correct facts, the only ‘articles protected by’ the ’196 patent are televisions made abroad by a third party, Samsung.”
  2. Whether “[t]he panel incorrectly found that ‘there is no dispute that the “intellectual property” at issue’—the ’196 patent—is practiced by UEI’s QuickSet software.”