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. Since our last update, the en banc court issued an order granting an immediate administrative stay of judgments and permanent injunctions. As for the two pending en banc cases, the court will hear oral argument next week in one, a government contract case, and the court received an amicus brief in the other, which raises questions related to statutory interpretation and agency deference. As for pending petitions, since our last update the court received five new petitions, three in patent cases, one in a case raising questions related to statutory interpretation, and one in a pro se case. In addition, a response has been filed to a petition in a patent case raising a question related to collateral estoppel. The court also denied two petitions for en banc rehearing in a patent case and a pro se case. Here are the details.

En Banc Court Grants Administrative Stay of Judgments and Injunctions

As we highlighted last week, the en banc Federal Circuit issued an order granting an immediate administrative stay of the judgments and permanent injunctions entered by the Court of International Trade against President Trump’s Executive orders imposing various tariffs.

En Banc Cases

There are two pending en banc cases. Here are the updates in these cases.

Upcoming Oral Argument

Next week the en banc court will hear oral argument in Percipient.AI, Inc. v. United States. The Federal Circuit granted en banc rehearing in this case to reconsider the issue of standing to allege a violation of a statute or regulation in connection with the procurement of a government contract. For more information, check out our argument preview.

New Amicus Brief

Since our last update, the Chamber of Commerce filed an amicus brief in Lesko v. United States, in which the court sua sponte granted an initial hearing en banc. The court requested briefing on the following issues:

  1. “Considering Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), how should ‘officially ordered or approved’ in 5 U.S.C. § 5542(a) be interpreted?”
  2. “Is this a case in which ‘the agency is authorized to exercise a degree of discretion’ such that the Office of Personnel Management (‘OPM’) has authority to adopt its writing requirement? Loper, 603 U.S. at 394.”
  3. “Is there a statutory provision (e.g., 5 U.S.C. §§ 1104, 5548) that provides such authority?”

Since our last update, the Chamber of Commerce of the United States filed an amicus brief in support of neither party. The brief argues, that under the precedent set by Loper Bright, “courts must exercise their independent judgment when it comes to the meaning of statutes that govern federal agencies.” The Chamber of Commerce argues this means “courts must conduct de novo review and use all the traditional tools of statutory interpretation to arrive at the ‘best’ reading of the statute,” and that determining the meaning of “officially ordered or approved” in this case “requires this Court to exercise its independent judgment under Loper Bright.”

Pending Petitions

New Petitions

Since our last update, five new petitions for en banc rehearing have been filed.

In Janssen Pharmaceuticals, Inc. v. Mylan Laboratories Ltd., Mylan asked the following questions:

  1. Whether “[t]he panel affirmed the judgment of induced infring[e]ment by relying on evidence of attempted-but-failed infring[e]ment” and whether “[a]ttempted infring[e]ment cannot suffice to prove practice of all claim elements.”
  2. Whether “[t]he panel’s specific intent holding failed to consider noninfringing uses or recognize the district court’s erroneous analysis thereof” and whether “[a]ll of this product’s indicated uses are noninfringing.”
  3. Whether “[a] patient missing a dose is a limitation of the asserted method claim”; whether “[p]ractice of the method is conditioned on a patient interrupting their therapy”; and whether “the panel assessed intent in the hypothetical world where a dose has already been missed–assuming conditionality away and eliding critical label warnings against missing doses.”

In Lashify, Inc. v. International Trade Commission, the International Trade Commission asked the following questions:

  1. “Under 19 U.S.C. §§ 1337(a)(2) and (a)(3)(B), does the statutory language require that ‘labor or capital’ include only labor or capital that establishes an ‘industry,’ consistent with the statute’s plain language and purpose to provide trade relief to only U.S. industries, or does the statute require inclusion of all labor or capital?”
  2. “Did the panel overlook certain relevant tools of statutory interpretation by reading the terms labor and capital in isolation without regard to the whole text and overall statutory scheme of 19 U.S.C. § 1337, contrary to King v. Burwell, 576 U.S. 473 (2015), and Hibbs v. Winn, 542 U.S. 88 (2004), thus rendering the statutory term ‘industry’ meaningless?”

In Longitude Licensing Ltd. v. Google LLC, Longitude Licensing asked the following question:

  • Whether “[r]ehearing en banc is necessary because the panel decision conflicts with the Court’s body of § 101 precedent applying Alice and introduces uncertainty as to the role of the specification in the § 101 analysis.”

In Sage Products, LLC v. Stewart, Sage Products asked the following question:

  • “Does this Court apply a de novo or abuse of discretion standard of review for the question of whether the Patent Trial and Appeal Board violated the Administrative Procedure Act (‘APA’) by basing its judgment on grounds not raised in a petition for inter partes review (‘IPR’)?”

In Wakefield v. Blackboard Inc., a pro se litigant filed an en banc petition presenting the following question:

  • “Whether the inclusion of Judge Pauline Newman, or any judge who has a witnessed and documented state of deteriorating mental capacity is allowable in the proper application of 28 U.S.C. § 46(b), when the Court creates a 3-judge panel by selecting a particular judge to serve on that panel.”

New Response

Since our last update, a new response to a petition has been filed in Kroy IP Holdings, LLC v. Groupon, Inc. In this case, Groupon presented a petition asking the court to consider the following question:

  • Whether “[t]he panel erred in determining a patent owner is not precluded from asserting patent claims that do not differ materially from claims the Federal Circuit had affirmed were unpatentable based upon a decision of the Patent Trial and Appeal Board and in concluding the patent owner is not collaterally estopped from arguing the validity of those claims under this Court’s precedents.”

Now, in its response, Kroy argues Groupon’s petition should be denied for three reasons: (1) the petition “mischaracterizes” the facts and holdings of various cases the Federal Circuit relied on to make its decision; (2) the petition’s “remaining arguments for rehearing are inapposite;” and (3) while the petition suggests “public commentary on the Court’s decision and supposed concerns about abuse of the patent system warrant rehearing,” according to Kroy “[s]uch ‘concerns’ are unsubstantiated, overblown by Groupon, and certainly do not justify ignoring the law of collateral estoppel.”

Denials

Since our last update, the Federal Circuit has denied two petitions for en banc rehearing: