En Banc Activity / Petitions
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Here is an update on recent en banc activity in patent cases at the Federal Circuit. Highlights include two new petitions raising questions about claim construction, summary judgment, and eligibility and two denials of petitions raising questions related to unclean hands and ANDA litigation. Here are the details.

New Petitions

New petitions for rehearing en banc were filed in two cases.

In Unm Rainforest Innovations v. Zyxel Communications Corp., Unm Rainforest Innovations asked the en banc court to review the following questions:

  1. “Whether the Panel erred in applying its own guidance, as provided in Phillips, in reviewing the PTAB’s claim construction.”
  2. “Whether the Panel erred in upholding the PTAB’s claim construction, and more particularly, erring in not considering the totality of the specification in its review of the PTAB’s claim construction.”

In Island Intellectual Property LLC v. TD Ameritrade, Inc., Island Intellectual Property LLC asked the en banc court to review the following questions:

  1. “May the Court disregard FRCP 56 when deciding summary judgment in a patent litigation, in particular Rule 56’s requirement to apply all inferences in favor of the non-moving party?”
  2. “May the Court invalidate a patent as ineligible on summary judgment without a reasoned analysis under Step 2 of Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014)?”

Denials

The Federal Circuit also recently denied petitions for rehearing en banc in two cases involving three petitions.

In Luv N’ Care, Ltd. v. Laurain, the en banc court declined to consider the following question:

  • Whether the Panel’s decision was “contrary to the following decisions of the Supreme Court of the United States or the precedents of this court as it permits the actions of a non-party to form a basis for dismissal for unclean hands.”

In Salix Pharmaceuticals, Ltd. v. Norwich Pharmaceuticals Inc., the en banc court declined to consider the following questions:

  • “Whether a panel of this Court may affirm findings of a district court based on an analysis the district court never conducted and evidence the district court never credited.”
  • “Whether 35 U.S.C. § 271(e)(4)(A) requires district courts to tie the effective date of FDA approval to the indication for which the infringing ANDA seeks approval when that indication alone is the source of the infringement of a method-of-use patent.”