Here is an update on recent en banc activity at the Federal Circuit in patent cases. Since our last update, the Federal Circuit granted en banc rehearing to address a question concerning standing at the Court of Federal Claims to allege a violation of a statute or regulation in connection with a procurement or proposed procurement of a government contract. Additionally, an amicus brief has been filed in a pending en banc patent case raising a question concerning a district court’s responsibility to scrutinize a patentee’s reliance on supposedly comparable licenses. There are no updates regarding pending petitions. Here are the details.
En Banc Cases
Grant of Rehearing
As we reported earlier this week, the court granted a petition for en banc rehearing filed by the United States in Percipient.AI, Inc. v. United States. The United States presented the following questions in its petition:
- “Does a protester need to be an actual or prospective bidder on the procurement at issue to be an interested party with standing to allege a violation of a statute or regulation in connection with a procurement or proposed procurement under 28 U.S.C. § 1491(b)(1)?”
- “Does the jurisdiction of the Court of Federal Claims to consider a protest alleging a violation of statute or regulation in connection with a procurement or proposed procurement allow review of an agency’s administration of the performance of a procurement contract?”
- “Does the Federal Acquisition Streamlining Act (FASA), 10 U.S.C. § 3406(f), which prohibits the protest of the issuance or proposed issuance of a task or delivery order, bar a protester’s challenge to the performance of a task order, [w]hich necessarily is directly and causally related to the issuance or proposed issuance of that task order?”
In the order granting rehearing, the court requested the parties “file new briefs, which shall be limited to standing under 28 U.S.C § 1491(b)(1) and address the following question: Who can be ‘an interested party objecting to . . . any alleged violation of statute or regulation in connection with a procurement or a proposed procurement’ under 28 U.S.C § 1491(b)(1)?” The court will not revisit any other issues.
New Amicus Brief
Since our last update, there is one new amicus brief in the only other pending en banc case, EcoFactor, Inc. v. Google LLC. The court granted rehearing to consider a district court’s responsibility to scrutinize a patentee’s reliance on supposedly comparable licenses. The court requested new briefs from the parties related to “the district court’s adherence to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in its allowance of testimony from EcoFactor’s damages expert assigning a per-unit royalty rate to the three licenses in evidence in this case.”
In the amicus brief, the Intellectual Property Owners Association argues the district court “failed to fulfill its gatekeeping role under Daubert and [Federal Rules of Evidence] 702″ by allowing EcoFactor’s damages expert to “present the jury with unreliable testimony.” IPO claims district courts need “a clear directive from” the Federal Circuit. First, IPO asserts, district courts contradict recent amendments to Rule 702 by not raising the sufficiency of an expert’s testimony as a question of admissibility. Second, IPO posits, “district courts’ gatekeeping role” must include “ensuring that damages expert testimony complies with the Supreme Court’s and this Court’s precedent.” IPO claims district courts consistently fulfilling their obligations to supervise expert testimony provides numerous benefits, and IPO argues the district court failed to fulfill its gatekeeping role in this case.