En Banc Activity / Featured / Petitions
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Here is an update on recent en banc activity at the Federal Circuit in patent cases. A response brief was filed in a pending en banc case concerning a district court’s responsibility to scrutinize a patentee’s reliance on supposedly comparable licenses. Petitioners also filed two new petitions, one seeking an emergency injunction and one presenting a question regarding vicarious liability for direct infringement. Here are the highlights.

En Banc Cases

Response Brief

Since our last update, a response brief has been filed in one of the two pending en banc cases, EcoFactor, Inc. v. Google LLC. The court granted rehearing in this case to consider a district court’s responsibility to scrutinize a patentee’s reliance on supposedly comparable licenses.

In the response brief, EcoFactor argues the panel applied the proper standard and properly recognized the expert’s opinions to be tied to the facts of the case. First, EcoFactor argues Google cannot challenge the admission of the expert witness’s testimony because, on appeal, Google allegedly did not address whether the trial court’s error was harmless. Moreover, EcoFactor contends Google “cannot” show harmful error “because it cannot show that the jury’s verdict was based on the challenged testimony.” Additionally, “[e]ven if the Court reaches the Rule 702 question raised in this appeal,” EcoFactor argues, “the only appropriate result is to affirm.” According to EcoFactor, the expert’s “opinion about applicable license rates was based on the widely accepted methodology of analysis of comparable licenses under the rubric of the hypothetical negotiation under the Georgia Pacific factors.” Moreover, it says, “[c]harging district courts with adding a new ‘credibility of the evidence relied upon’ test to Rule 702 would conflict with Rule 702, with the precedents of the Supreme Court, and with the Seventh Amendment to the Constitution.” Interestingly, EcoFactor “objects to this en banc proceeding as improper under both 28 U.S.C. § 46 insofar as at least one active member of this Court, Circuit Judge Newman, has been excluded from participation in this proceeding.” EcoFactor also argues her exclusion violates its “rights to due process.”

En Banc Petitions

New Petitions

Since our last update, there have been two new petitions.

In Novartis Pharmaceuticals Corp. v. Torrent Pharma Inc., Novartis raised the following issue:

  • “[Whether] the panel’s January 10, 2025 order denying Novartis’s Rule 8 motion for an injunction pending appeal as moot and lifting the administrative injunction entered on August 14, 2024, misapprehended or is contrary to the following precedent of this court.”

In CloudofChange, LLC v. NCR Corp., CloudofChange raised the following issue:

  • “Whether the same vicarious liability analysis for direct use infringement under 35 U.S.C. § 271(a) must be applied to both method and system claims in view of Limelight Networks, Inc. v. Akamai Technologies, Inc., 572 U.S. 915 (2014)?”