Here is an update on recent en banc activity at the Federal Circuit in patent cases. Last week the Federal Circuit heard oral argument in one of the two pending en banc cases. With respect to pending petitions, two new petitions have been filed and the court denied one petition. One of the new petitions raises a question regarding claim construction; the other new petition raises a question concerning whether an abandoned patent application that becomes publicly available only after a challenged patent’s critical date is a printed publication that can be the basis for an inter partes review proceeding. The petition that was denied raised a question regarding apportionment of damages for patent infringement. Here are the details.
En Banc Cases
Since our last update, the Federal Circuit heard oral argument in EcoFactor, Inc. v. Google LLC. As a reminder, in this case the court is considering whether a patentee’s reliance on supposedly comparable licenses resulted in an artificially inflated damages award. We will be posting our argument recap soon.
En Banc Petitions
New Petitions
Since our last update, petitioners have filed two new en banc petitions.
In Samsung Electronics Co., Ltd. v. Power2B, Inc., Power2B raises the following question:
- “Whether a disputed claim recital, which formed the basis of a restriction requirement, should be construed to encompass all embodiments or only the specific embodiments corresponding to the elected group?”
In Lynk Labs, Inc. v. Samsung Electronics Co., Ltd., Lynk Labs raises the following question:
- “Whether an abandoned patent publication that became publicly accessible only after the challenged patent’s critical date is a ‘prior art . . . printed publication[]’ that can be a basis for an inter partes review under 35 U.S.C. §311(b).”
Denial
Since our last update, the court denied the petition for en banc rehearing in Altria Client Services LLC v. R.J. Reynolds Vapor Company, which 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).”