En Banc Activity / Featured / Petitions
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Here is an update on recent en banc activity at the Federal Circuit. Two new amicus briefs were filed in a pending en banc case concerning standing to allege a violation of a statute or regulation in connection with the procurement of a government contract. Additionally, one new petition was filed, presenting a question regarding apportionment of damages for patent infringement. Finally, the court denied an en banc petition raising a question regarding claim construction. Here are the details.

En Banc Cases

New Amicus Briefs

Since our last update, two new amicus briefs have been filed in one of the two pending en banc cases, Percipient.AI, Inc. v. United States. In this case the court will consider the issue of standing in the context of an allegation of a violation of a statute or regulation in connection with the procurement of a government contract. In granting en banc rehearing, the court articulated 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)?”

Both of the new amicus briefs support Percipient.AI.

In its amicus brief, Palantir argues “standing exist[s] . . . for parties that are not ‘actual or prospective offerors.'” Palantir notes the Court of Federal Claims has “jurisdiction over actions in which an ‘interest party’ objects to any of three different Federal procurement related events: i) a solicitation; ii) a proposed or actual contract award; or iii) any alleged violation of a statute or regulation in connection with a procurement or a proposed procurement.” Palantir suggests the third prong “reach[es] wrongful procurement-related Government conduct that goes beyond problematic solicitations or award selection decisions.” Palantir contends “the most straightforward, common-sense and harmonious reading of § 1491(b)(1) . . . provides for ‘interested parties’ under the third prong to be distinct from those who meet that definition under the first two prongs.” According to Palantir, any holding that standing does not exist for parties that are not “actual or prospective offerors” would “effectively collapse[] § 1491(b)(1)’s third prong into the first two and thus renders it superfluous.”

In its amicus brief, National Industries for the Blind urges the Federal Circuit “to affirm the decision below that a party other than the direct offeror on a federal contract may be an ‘interested party’ with standing to challenge an agency’s violation of statute or regulation in connection with a procurement or proposed procurement.” NIB contends nonprofit agencies that serve the blind “have a direct interest in challenging unlawful procurements that fail to comply with the requirements” of the Javits-Wagner-O’Day Act. That Act, NIB explains, “requires agencies to procure certain services and supplies from” nonprofit agencies that serve the blind. Thus, NIB argues, these nonprofit agencies “are . . . interested parties under the third prong of the Tucker Act’s jurisdictional provision.” NIB claims “[a]ny decision from this Court should preserve [nonprofit agencies’] ability to challenge procurement actions that violate the JWOD Act, regardless of whether the Court affirms the panel’s holding with respect to commercial sources, like Percipient.ai.”

En Banc Petitions

New Petition

Since our last update, there has been one new petition for en banc rehearing. In Altria Client Services LLC v. R.J. Reynolds Vapor Company, R.J. Reynolds raised the following question:

  • “Whether the Court’s ‘built-in apportionment’ doctrine is contrary to the Supreme Court’s rule in Garretson v. Clark, 111 U.S. 120 (1884), and should be overruled or at least limited to the unique circumstances presented in Commonwealth Scientific & Industrial Research Organisation v. Cisco Systems, Inc., 809 F.3d 1295 (Fed. Cir. 2015).”

New Denial

Since our last update, there has been one new denial. In XMTT, Inc. v. Intel Corporation, XMTT raised the following question:

  • Whether “[t]his Court’s decision summarily affirming the district court’s judgment under Rule 36 without elaboration necessarily relied upon a flawed district court claim construction interpreting claim terms including the words ‘serial processor’ in a manner inconsistent with: 1) their ‘meaning in the field’ (including by Intel itself outside of this dispute), 2) the full language of the claims, and 3) their ‘meaning . . . within the context of the patent’ (including the very purpose of the invention) contrary to this Court’s seminal Phillips claim construction decision.”