Here is an update on recent en banc activity at the Federal Circuit in patent cases. Since our last update, the court received a petition raising a question related to patent eligibility. The court also issued an invitation for a response to a petition raising a question regarding Article III jurisdiction to adjudicate patent infringement when the relevant patent has already expired. The court has also recently denied two petitions. The first denied petition raised 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 form the basis for an inter partes review proceeding. The second denied petition raised questions concerning expert testimony to prove infringement of a means plus function element, claim construction, and the reverse doctrine of equivalents. Here are the details.
New Petition
Since our last update, one new petition has been filed. In US Synthetic Corp. v. International Trade Commission, US Synthetic Corp. raises the following question:
- “Whether the Alice Step One inquiry can include findings of fact, which when made by an agency, must be reviewed for substantial evidence rather than de novo.”
Invitation to Respond
Since our last update, the court invited a response to the petition for rehearing en banc in In re Entresto. In its petition, Nanjing Noratech Pharmaceutical raised the following question:
- “Whether the availability of a pediatric exclusivity period gives a court Article III jurisdiction to adjudicate patent infringement even after the patent has expired.”
New Denials
Since our last update, the court has denied two petitions:
- Lynk Labs, Inc. v. Samsung Electronics Co. (whether a published and later abandoned U.S. patent application qualifies as a printed publication for purposes of use in an inter partes review proceeding)
- Steuben Foods, Inc. v. Shibuya Hoppmann Corp. (expert testimony, claim construction, and the reverse doctrine of equivalents)