En Banc Activity / Featured / Petitions
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Here is an update on recent en banc activity at the Federal Circuit. Since our last update, the Federal Circuit has scheduled oral argument in President Trump’s appeal challenging judgments and injunctions entered Court of International Trade in cases challenging his tariffs. Also three new en banc petitions have also been filed in patent cases, two appealed from the Patent Trial and Appeal Board and one appealed from a district court. Here are the details.

En Banc Cases

There is one update in V.O.S Selections, Inc. v. Trump. As a reminder, this case challenges the legality of President Trump’s tariffs under the International Emergency Economic Powers Act. The Federal Circuit granted a stay of the judgment and injunctions entered by the Court of International Trade, which ruled that President Trump’s tariffs were unlawful. Following an expedited briefing schedule, the Federal Circuit has scheduled oral argument for July 31, 2025 at 10:00 a.m.

Petitions

New Petitions

Since our last update, three new en banc petitions have been filed.

In BillJCo, LLC v. Apple Inc., BillJCo asked the court to consider the following questions:

  1. Whether “[t]he Board shifted the burden to prove unpatentability away from the patent challenger by requiring the patent owner to prove a claim limitation does not include certain scope so as to differentiate over the prior art.”
  2. Whether the panel’s decision “endorses requiring direct evidence of copying as objective indicia of nonobviousness, rather than circumstantial evidence.”

In Power2B, Inc. v. Samsung Electronics Co., Power2B asked the court to consider the following questions:

  1. Whether “the petitioner failed to address a claim limitation—in any manner—in its petition for inter partes review.”
  2. Whether “the petitioner did not prove—or even argue—that a claim limitation is materially different from limitations found in other claims and discussed elsewhere in the petition for inter partes review.”
  3. Whether “the petitioner failed to meet its burden in its petition for inter partes review, to present a clear argument and identify with particularity the evidence that supports the grounds for the challenge to each claim.”
  4. Whether the panel’s decision applies “the unrebutted presumption that different claim terms are presumed to have different meanings.”
  5. Whether the panel’s decision “shifts the burden to the patent owner to prove that different claim terms have different meanings and excuses the failure of the petitioner below to rebut the presumption.”
  6. Whether the panel’s decision “allowed the petitioner below to present forfeited arguments not raised to the PTAB in its petition for inter partes review for the first time on appeal.”

In Recentive Analytics, Inc. v. Fox Corp., Recentive Analytics asked the court to consider the following questions:

  1. Whether “[b]y requiring any machine learning invention to claim both (1) new applications of machine learning and (2) machine learning models unknown in the prior art, the panel confuses patent eligible subject matter with the distinct requirements of novelty and nonobviousness.”
  2. Whether “the panel’s holding that ‘the claims do not delineate steps through which the machine learning technology achieves an improvement’ . . . effectively converts the [35 U.S.C.] § 101 inquiry into an enablement requirement that properly belongs to [35 U.S.C.] § 112.”